Is the Crimea Crisis a Factual or Legal Disagreement?

by Julian Ku

University of Memphis law professor Boris Mamlyuk criticizes most U.S. international law commentary on the Crimea/Ukraine crisis for failing to take seriously the Russian point of view. I’ve noticed several commenters here have also complained about our pro-Western bias.  Part of the problem is that there is a dearth of international law commentators writing in English in favor of the Russian legal position. Even Prof. Mamlyuk’s short essay doesn’t try to defend or explain Russia’s legal position, except to point out that Ukraine may have committed some minor violations of its own.  But let me try to at least explore Russia’s position in more detail. The best defense I can come up with is that Russia is arguing the “facts” and not the “law.”

During today’s Security Council debate, Russia’s UN Ambassador Vitaly Churkin appears to have given a fuller defense of Russia’s legal position, at least vis-a-vis the upcoming Crimea referendum.

“Some dispute the legality of such a referendum, but it is unacceptable to manipulate individual principles and norms of international law, randomly pulling them out of context not only of the international law, but the specific political circumstances and historical aspects,” Churkin said.

In each case, the envoy believes, one should “balance between the principles of territorial integrity and the right for self-determination.”

“It is clear that the implementation of the right of self-determination in the form of separation from the existing state is an extraordinary measure. In Crimea such a case apparently arose as a result of a legal vacuum, which emerged as a result of unconstitutional, violent coup d’état carried out in Kiev by radical nationalists, as well as direct threats by the latter to impose their order on the whole territory of Ukraine.”

I am pretty surprised that Russia is  endorsing this expansive view of self-determination, which I think could be fairly invoked by certain parts of Russia itself (Hello, Chechnya!).  But I suppose the dispute here with the West could be understood as factual rather than legal.  Most scholars would accept the idea that self-determination is appropriate in certain exceptional circumstances, such as decolonization or when facing the threat of genocide or other mass killings. No one west of the Ukraine border seems to think Crimea qualifies (except the good folks at RT) because none of us think that the new Ukrainian government has threatened Crimea in any tangible way.  But Russia could be understood to be arguing the facts (see, Crimea really is threatened by the fascists in Kiev) rather than the law.  I think it is a pretty ludicrous factual argument, but there it is.

Russia’s position on the use of military force is also factual rather than legal.  It argues that there are no Russian forces in Crimea other than the naval forces that are stationed there by treaty right. It simply denies that the forces in control in Crimea are official Russian troops.  This appears to be an even more ludicrous factual claim, but it also would mean that Russia accepts that open displays of military force would be a violation of the Charter.

Russia’s shift to factual rather than legal arguments is smart because it parries US and EU criticisms about the “violation of international law.”  It doesn’t rebut those charges terribly well, mind you, but perhaps the argument is just strong enough to convince those who want to find ways to accept the legality of Russia’s actions.

http://opiniojuris.org/2014/03/14/fair-balanced-russias-legal-position-crimea/

5 Responses

  1. The Crimea/Ukraine is a factual set of events that can only be truly understood through the eyes of intelligent and good men/women as opposed to through the lens of international legal norms.  It is difficult to appreciate what is actually going on in that space though, given the amount of disinformation, withheld information etc.  Without bogging down into any subsequent legal arguments that may have arose after the Ukraine President saw fit to flee, I would like a thorough exploration of the facts leading up to the point where it seems afterwards the western legal, media and political guru’s concentrate their efforts to discredit subsequent Russian behaviour.  This point being the moment where the ousted Ukrainian President made the decision to flee the country.  I say this because I fear that there may have been some western influence at work prior to his departure.  After all, real history has a habit of revealing the true alleged perpetrators at the root causes of wars past.  It shows the true nature of their alleged involvement in war crimes, and their alleged subsequent efforts to rewrite the truth as victors.  By all accounts mountains of evidence but nothing recognised by International Law.  This influence (financial or other), if present prior to the ousted President fleeing, may have been designed to bring about this type of outcome and if that was so, then international law becomes more of a joke than it already is (Israel, Iraq, Afghanistan, all of the others).  It shows its true colours as nothing more than corrupt and unlawful system that analyses dots individually without joining them up in order to purposely avoid getting the true picture!  I am extremely curious as to why there are allegations against the newly installed regime in that they have used a sniper to create a situation on the ground that was then echoed by western media as the doing of the Ukrainian Police who they touted were most likely following the orders of the old President?  We clearly need to start looking at all the facts and we clearly need to start joining up all the dots before fair and lawful judgement can be made. We also clearly need to start applying these principles equally and without unnecessary compromise across the board.  It is certainly clear to me that amongst so much hearsay and rhetoric, we are nowhere near to the point where we can know the facts and apply lawful judgement in favour or against any concerned parties.  Any talk otherwise before the facts surface is pure rubbish.

  2. Not that it is determinative, but I wonder what the PRC thinks of the Russian claim regarding self-determination!
    Yes, the facts, the critical and informing facts.

  3. I agree with the basic criticism that international lawyers in the West typically display a pro-Western bias when examining situations in non-Western places. I work a lot on the Iran nuclear issue, and this is definitely true in that context. I think Julian also has a good point here about states’ views of the law being largely determined by their views of the facts, as they choose to see them. The new government in Kiev came into power in a very nonconventional, and one could certainly argue illegal way, but since this is a government that the West supports, there is little fixation on those issues of law. But the “illegal” referendum to be held in Crimea is front and center in Western criticism of Russia. WRT self-determination, there was certainly strong Western support for Kosovo’s claim thereto, but again that’s because on the facts of that situation, the West was sympathetic to the overall circumstances of the Kosovar people, and if anything Kosovo’s self determination was a blow to a client state of Russia. Are the cases distinguishable? Of course. They always are. But the basic point remains that how much states care about the formalities of international law is very much dictated by their view of the facts of a situation, and their interests and sympathies, etc., in the particular context. This is not revolutionary thinking, of course, but is good to be reminded of.

  4. What’s ironic to me is that the realist, “sphere of interest” arguments are stronger for Russia than the ones of strict legality. A Russian fait accompli in Crimea makes “sense” if you believe Ukraine, EU and NATO will potentially take away Russia’s access to the Black Sea, which would be a major strategic setback for any Russian government.
    I’m reminded of the proposals prior to WWI about a “Halt in Belgrade” where Austria-Hungary was to stop their invasion of Serbia in Belgrade, stay for a bit until Serbia acceded to some demands, with Austria-Hungary ultimately withdrawing. The plan would allow Austria-Hungary to keep it’s “honor” as a great power, while preserving Serbia’s territorial integrity.  
    I wonder if a deal could be made along the same lines here. Ukraine’s territorial integrity is preserved, with no penalty for Russia’s fait accompli, but with a recognition that Russia has longterm and secure access to the Black Sea, with Ukraine remaining neutral between Russia and the EU/NATO but with access economically for its people to both “spheres.” The penalty being any breach by Russia and the remainder of Ukraine is drawn in completely to the EU/NATO orbit.
    Another option is incentivizing Russia to join the EU/NATO by dumping an autocratic form of government. But how to do that, I don’t know. 

Trackbacks and Pingbacks

  1. […] simply the fact that Russia’s “support” of Crimea has apparently been justified based on an assertion that the right to external self-determination apparently now applies in […]