Guest Post: The Russia-Crimea Treaty

[Gregory H. Fox is a Professor of Law and Director of the Program for International Legal Studies at Wayne State University Law School.  I would like to thank my colleague Brad Roth for helpful comments on a draft of this post.]

The latest development in Crimea’s headlong rush out of Ukraine is an agreement, signed on Sunday, March 16, between the Russian Federation and the Crimea. While I have not found a full translation of the agreement from Russian, the full text is available on the Kremlin website (as is President Putin’s extended response to western international legal arguments, which is well worth reading in full).

In rough translation, Article 1 of the treaty provides that the “Republic of Crimea is considered to be adopted in the Russian Federation from the date of signing of this Agreement.”  The incorporation is “based on the free and voluntary will of the peoples of the Crimea.”  Article 2 announces the formation of two new entities, the Republic of Crimea and the “federal city of Sevastopol.”  Article 5 provides that residents of Crimea will become Russian citizens, unless within one month they choose another nationality. Article 6 describes a seven month transition period during which the economic, financial, credit and legal systems in Crimea will be integrated into those of the Russian Federation.”

The agreement has been accurately described as completing the annexation of Crimea.  Territory that thirteen of fifteen Security Council members believe is still part of Ukraine has been transferred to Russian control.  Let me make three quick observations about this agreement.

First, there is the question of whether it is a treaty at all.  A treaty under international law is ordinarily understood as an agreement between states.  It seems unlikely that Crimea would be considered a state on March 16, regardless of the theory one employs.  At the time of the signing, Crimea had apparently been recognized only by Russia, precluding statehood under the constitutive theory. And having asserted independence from Ukraine for no more than three weeks prior to the agreement, Crimea had not developed the capacity to function as a state, precluding statehood under the declaratory theory.

More importantly, its independence came about as a result of Russia’s unlawful use of force, a situation the ICJ in the Kosovo opinion [para. 81] held as precluding an entitlement to independence.  Crimea’s unlawful separation from Ukraine—and its near-universal condemnation in the international community—would seem to take the Russia-Crimea agreement out of the shadowy realm of agreements between states and non-state actors that, in some cases, might effectively be elevated to treaty status.  In cases such as peace agreements between states and rebel groups, other states have treated the two sides as sovereign equals, elevating the status of the non-state actor in order to elevate the status of the agreement itself.  But with Crimean separation being widely condemned, the reverse would seem to be the case here: a collective decision to shun one of the parties has the effect of denying it legal capacity to enter into a treaty.

Some argue that an internationally acknowledged self-determination unit (e.g., Palestine) may conclude a treaty notwithstanding the state-centric definition in Article 2 of the Vienna Convention.  This argument relies on Article 3 of the Vienna Convention, which provides that the Article 2 definition shall not preclude the legal force of agreements “concluded between States and other subjects of international law.”  A territory entitled to self-determination is a “subject of international law” and thus possessed of treaty-making capacity under Article 3.

Whatever the merits of this legal theory, it seems clear that few, if any, states besides Russia believe that Crimea was entitled to external self-determination.  The safeguard clause of the Friendly Relations Declaration (GA Res. 2625 (XXV) (1970)) precludes “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples … and thus possessed of a government representing the whole people belonging to the territory without distinction ….”  At minimum, there is a very strong presumption in favor of territorial integrity that can be overcome only by the central government’s commission of the most egregious misconduct in the territory in question; the new Ukrainian government did not even have the opportunity to establish policies toward Crimea, let alone to engage in oppression sufficient to vitiate this fundamental sovereign right.

Even if the agreement were considered a treaty, there is a second question concerning its validity.  The agreement would seem directly contrary to the peremptory norm of state territorial integrity.  This renders it void ab initio under Article 53 of the Vienna Convention on the Law of Treaties.  Why would this be the case?  It is not because the treaty, in the words of the International Law Commission, contemplates “an unlawful use of force contrary to the principles of the Charter.”  It is rather that the treaty finalizes the fruits of an unlawful use of force.  It is the final act in a process of annexing sovereign territory and may be regarded as no less integral to accomplishing that goal than the use of force itself.  The territorial integrity of Ukraine was initially and perhaps temporarily violated when Russian forces moved in to the Crimea.  But the treaty purported to make that violation permanent.  An argument that sought to distinguish the final act of annexation from its first stages makes little sense; they are both violative of Ukraine’s right to control its own territory.

A final observation concerns what can be done. One option for states opposed to the annexation would be to ask the General Assembly to seek an advisory opinion from the ICJ on the legality of the treaty.  The Court has previously given advisory opinions on actions affecting the status of particular territories—the Western Sahara Case, the Occupied Palestinian Territory “Wall” Case, and the Kosovo Case being the most prominent examples.

Would the General Assembly support such a request?  The 13-1-1 vote in the Security Council on March 15 favoring the anti-Russian resolution suggests that opposition to Russian actions is widespread among UN members.  In Council debate many developing country members spoke favorably of the resolution’s support for principles of territorial integrity and non-use force.  In the words of the Chadian ambassador, “the intangibility [sic] of borders and territorial integrity of States is a sacred principle set forth in the Constitutive Act of the African Union.  Chad’s vote in favour of the draft resolution contained in document S/2014/189 reflects that commitment.” [p.10].

On the other hand, the United States, which has been the leading voice against Russian actions in Crimea, has exhibited a decided wariness toward the ICJ. But if other states were to introduce the resolution, there is no reason to believe that the U.S. would avoid participating; it made a submission in the Kosovo case (which President Putin cited in his speech linked to above as an example of American hypocrisy).  An ICJ opinion would obviously have little direct effect on Russian annexation, which is quickly becoming a fait accompli. But if part of the US strategy is to isolate Russia, then an opinion rejecting both its legal arguments and demonstrably false factual claims about the Crimea could be an asset.