From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia’s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, recognition of a belligerency, and recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway? While recognition is a political act, it does not ignore legality. Section 202 of the Restatement (Third) of Foreign Relations Law of the United States addresses the “Recognition and Acceptance of States.” The Restatement is not an official document, but it is persuasive authority. The comments to that section explain that treating an unqualified entity as a state “is an improper interference in the internal affairs of the parent state” and may rise to a being a violation of the Charter of the United Nations. (Sec. 202, comm. f) Moreover, in circumstances where there is an attempted secession where the pre-existing state continues to resists the secession, “refusing to treat it as a state may not be only justified but required, since premature acceptance is a violation of the territorial integrity of the state theretofore in control of that territory.” (Sec. 202, comm. d)

In the edition of James Brierly’s treatise edited by Humphrey Waldock, the text states:

It is impossible to determine by fixed rules the moment at which other states may justly grant recognition of independence to a new state; it can only be said that so long as a real struggle is proceeding, recognition is premature, whilst, on the other hand, mere persistence by the old state in a struggle which has obviously become hopeless is not a sufficient cause for withholding it.

James Brierly, The Law of Nations 138 (6th ed. 1963, Sir Humphrey Waldock, ed).

Sir Hersch Lauterpacht described premature recognition in his 1947 treatise Recognition in International Law as an act “which an international tribunal would declare not only to constitute a wrong but probably also be in itself invalid.” (Lauterpacht, Recognition, p.9).

Under this view, Russia’s recognition could itself be a breach of international law as it is not supported by the facts on the ground and it is an interference in the internal affairs of Ukraine.
If other states view recognition of Ukraine as premature, regardless as to whether they view such a recognition as formally illegal, then they will likely withhold recognition.

Another likely reason for withholding recognition is that this whole situation is pretty much Russia’s creation. As much as Moscow tried to stage manage the image of the Crimean vote with musical acts, waving flags, and light shows, attention kept turning back to the armed Russian forces, the tanks, and the new walls. Russia wanted the world to focus on the vote and forget the invasion.

Many jurists and policymakers have argued that states should not recognize a new state if such recognition would perpetuate a breach of international law.  Lauterpacht wrote that non-recognition “is the minimum of resistance which an insufficiently organized but law-abiding community offers to illegality; it is a continuous challenge to a legal wrong.” (Recognition, p.431)

Similarly, in paragraph 2 of Section 202 the authors of the Restatement posits:

A state has an obligation not to recognize or treat as a state an entity that has attained the qualifications for statehood as a result of a threat or use of armed force in violation of the United Nations Charter.

(Emphasis added.  For more on non-recognition, see Anna Dolidze’s post.)

Once again, some states would argue that a legal obligation of non-recognition does not exist under such circumstances, as recognition is largely political in nature. But regardless, it is clear that, at the very least, there is a very strong aversion to recognizing new states under such circumstances.

This is how you get the results described in my discussion with OJ reader “Jordan” in the comments to this previous post: over twenty attempted secessions since the end of World War II that have led to few, if any recognitions in each case. Depending on your criteria of what counts as a secession, only between one and four secessions achieved general recognition (Bangladesh, Eritrea, Kosovo, South Sudan). (Some would say Eritrea, South Sudan, and/or  Kosovo were not, technically, secessions.)

Two cases of attempted separation are South Ossetia (as an unsuccessful secession) and Kosovo (relatively successful).  Russia recognized South Ossetia, but not Kosovo. In my next post, I will consider what Russia had to say about recognition in each of those cases and how those arguments compare to what it is saying now about Crimea.