Since the end of the cold war, the world didn’t witness a complicated east-west crisis until the Crimean’s crisis took place after Ukraine’s pro-Russia president Yanukovych was removed from power due to the protests which took place in the Ukrainian capital. Since the beginning of the crisis, Russia has been criticized for breaching. This blog post questions, the legality of Russia’s annexation of the Crimea through analyzing the different arguments of the involved states and the principles of international law.
- A) Facts
First , according to BBC, the Crimean peninsula was annexed by the Russian empire in the late 18th century during the reign of Catherine the great, and it endured as a part of Russia until 1954 when the Soviet president Khrushchev decided to transfer it to Ukraine in perpetuity (2015).In addition, Ukraine was always autonomous under the USSR. After the USSR’s dissolution the Crimea was within the borders of what became the independent Ukraine. The relation between Kiev and the Crimea had always been complicated where ethnic Russians constitute the majority. Russia started to show its interest in the Crimea as the negotiations about the future of the black sea fleet were taking place ( Global Security ,2015) .
Second, the recent Russia intervention started as a slow motion action to occupy the Crimea. Russia began its intervention by a convoy of humanitarian aid for the pro-Russian rebels that was only used to cover the real Russian military buildup in eastern Ukraine. Later, the associated press has reported that about 300 trucks have left Moscow’s area and the Red Cross officials do not know about their contents. According to NATO’s secretary general, these trucks were used in military buildup in the Crimea’s that could be involved in an illegal military operations in Ukraine (Global security, 2015).
Third, according to BBC , Russia has always had a great influence on the Ukrainian ousted president Mr. Yanukovych with whom Putin signed a treaty to prolong the lease on Russia’s Black Sea fleet for 25 years. After Ukrainian protestors pushed Yanukovych to leave power, Russia restricted trade when Ukraine was on the edge of entering the European Union as an economic pressure on Ukraine. Followed by many anti-western protests in Moscow calling for the return of the legitimate ousted president of Ukraine (2015). According to Tom Parfitt, Fights began between pro Russians and Russians in the Crimea on a side and Ukrainian citizens on the other side until Ukrainian and Russian authorities have reached a ceasefire agreement in the Crimea (2015).
Fourth, the issue of the Crimea’s independence referendum took place just after the protests against Kiev’s coup which ousted Ukraine legitimate president. Most of the protestors demanded a referendum for the Crimea to spit up of Ukraine. The republic of the Crimea announced its independence from Ukraine on March 16 according to the referendum results which illustrated that 96.9% of the Crimean population chose to rejoin Russia. (RT, 2014) Consequently, Putin signed a treaty which stated the official annexation of the Crimea claiming that it has always been a part of Russia since the 18th century. (Beth Rowen, 2014)
Fifth, one of the most powerful arguments against Russia could be the illegal use of force against Ukraine under article 2(4) of the UN charter. This article emphasizes on the prohibition of the use of force by any states against one another , and the only exception of the prohibition of the use of force is under article 51 of the UN charter which is self-defense that and the authorization of the UNSC in order to maintain peace and security. In addition, according to article 51 of the UN charter for a self-defense to be legal it should be in response of an armed attack and Ukraine didn’t deploy any of its forces anywhere in the Russian’s territory (Wisehart, 2014) . According to Gray’s article, any self-defense to be legal, it should have fulfilled two conditions which are proportionality and necessity. Russia’s actions wasn’t necessary as it was no armed attack against it and if there was an armed attack , Russia should act in a proportionate manner to push out the Ukrainian troops out of its territory and to advance in theirs , and occupy the peninsula of the Crimea. Nonetheless, Russia was acting illegal according to article 51 of the UN charter, as its supports for the pro-Russian Ukrainians in Ukraine (even if it was logistic or financial) was kind of an indirect use of force that threatened the state’s integrity and political independence. Another point here is that, even if Russia pretended that it was intervened in the Crimea to rescue its nationals, it is also illegal as there was not any consent from the host state for Russia to intervene in it, and there is also an effective Ukrainian government so.
Russia based its claim on the following arguments .First of all, Putin argued that the treaty signed by the USSR and Ukraine in 1954 where the Crime was ceded to Ukraine is not binding anymore because according to article (60) of the VCLT, there is a fundamental change of circumstances as has been a change in sovereignty and the USSR ceased to exist so Russia is not bound by the USSR’s treaties.
Second, Putin emphasized that people living on a certain territory should have the right to choose or determine their own future. The referendum was Russia’s legal proof that the people living on the Crimean peninsula want to be part of Russia as about 95% of the votes of the residents was in favor of Russia’s annexation of the Crimea (BBC, 2014).
Third , Russia accused the West of supporting an illegitimate regime in Kiev which seized power through a coup in late February , and in that sense the West has no right to accuse Russia of committing illegal acts in terms of Crimea’s annexation. Besides, Putin responded to Western accusations against by pointing out the Western invasion in Iraq, where there was no U.N mandate. Moreover, he referred to what happened in Libya when the U.N resolution was disregarded by the West. (Alpert, 2014).
Fourth Putin argued that he had the presidential approval of Yanukovych to annex the Crimea. There was therefore no breach of international law norms or principles. Putin bases this claim on the argument that overthrowing the Ukrainian president Yanukovych is an anti-constitutional action and a military coup as Yanukovych is the legitimate president of Ukraine. (BBC, 2014).
Finally, concerning the treaties that were concluded by Russia and other states including Ukraine to guarantee national sovereignty, such as the Budapest Memorandum, Russia argues that if as Ukrainians allege what has happened in Ukraine is a revolution, Ukraine is now a new state with which Russia has no binding agreements. As result Russia did not breach any treaties. (Pacer, 2014). I disagree with Putin’s argument which justifies Russia’s breach of the Memorandum of Budapest by stating that Russia has no binding treaty with the new illegitimate government in Kiev. Agreements are binding on states and do not have to be changed according to the change of presidents as, if so, we would live in an anarchic world where disorder dominates. According to Jus Cogens, there is some obligations to successive governments and one of them is that “a successive government to be recognized shall exhibit a willingness to uphold the State’s obligations under international law” and the obligations of a new government under international law include treaty and contract obligations. Consequently, Putin’s former argument is illegal (2005).
Ukraine’s claims and international law
Ukraine argues that Russian actions in Crimea are illegal based on the following claims. First, the annexation of Crimea was a violation of the treaty that took place in 1954 between Ukraine and the Soviet Union where the Crimea was ceded to Ukraine. Hence, the legality of nowadays Russia’s recent annexation of the Crimea because it was historically a part of Russia is a weak argument since the treaty between the USSR and Ukraine in 1954 stated that Crimea belongs officially to Ukraine. Furthermore, the occupation of the sovereign Ukraine by Russia is an obvious violation of the fundamental principles and basic norms of international law. According to the Security Council of the United Nations, by resolution 2202(2015) , the Security Council called for the implementation of the Minsk agreements signed on 12 February 2015 by Minsk and Moscow to implement a ceasefire in eastern Ukraine. Then according to article (39) of the UN Charter, the Security Council shall determine the existence of any threat to the peace and therefore shall authorize any unilateral use of force. The fact that Russia has been acting unilaterally achieving its own interests to annex the Crimea without having the authorization of the Security Council is illegal. In the meanwhile, even if the Crimea and Ukraine were once parts of Russia since the 18th century there are many treaties that came into force later in the 20th and 21st centuries that assure that Crimea is a Ukrainian territory. These include the “Memorandum on Security Assurances” that was concluded by Ukraine, Russia and UK in 1994 (Düben, 2015).In addition, the Budapest Memorandum that was reassured by Russia in 2006, reinforces the respect of states’ borders and national sovereignty emphasizing on that all the parties of the treaty should not be involved in any use of force against any other state (Sharma, 2014) .
Second, according to article (60) of the VCLT Russia has explicitly committed a material breach of the Budapest Memorandum intervening militarily in Ukraine’s territory. Under the umbrella of article (60)(a) in the VCLT , the other states that have taken part in this multilateral treaty could terminate the treaty with the state that has breached it. It means that they could terminate the security assurances under the Budapest Memorandum that guaranteed the security of Russia as well (Sharma ,2014) .
Third, according to article 2(4) of the UN Charter, “All members shall 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”. As a result, Russia used force against the Crimea disguised by humanitarian convoy and as a result Russia has breached article 2(4) of the UN Charter. (Global security, 2015) .
Another point that is worth mentioning is that according to Opinio Juris, “This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination. Crimea is already an autonomous republic within Ukraine; more on that in a minute.” This clarifies that the republic of Crimea is autonomous on several levels and there is no need for Russia to appeal for the right of self-determination to the Crimean population. In addition, the Crimea independence referendum held by Russia which showed that 96.6% of the Crimean’s residents were favor of Russia’s annexation of Crimea is illegal according to the UN General Assembly that has voted for it illegality . In addition, article (73) of the Ukrainian constitution, states that all Ukrainian population should have voted on the Crimea dependence referendum in order for the referendum to be legal (Sharma, 2014) .
Considering the fact that international law is ambiguous, it is difficult to decide who has really breached its norms as states could easily manipulate it to justify their actions in order to achieve their interests. However, there are many lawful methods under international law that can present solutions to sovereignty problems between states without committing illegal actions. Russia’s annexation of the Crimea has breached the basic principles of international law and even the justifications of Putin showed the territorial interests. Russia has violated the sovereignty of Ukraine for annexing Crime claiming that it has a historical right. The historical claims of Russia are not valid because if each and every country will annex a territory that was part of it hundreds of years ago, all the world’ borders would be unstable. Finally, I believe that the international community as a whole should find solutions for the crisis that would end it totally and that it would enhance the authority of international law.