Guest Post: What do Russian Lawyers Say about Crimea?

[Anton Moiseienko received his LL.M. from the University of Cambridge and is currently a Ph.D. candidate at Queen Mary, University of London. All translations from Russian in this piece are his own. He is a citizen of Ukraine.]

Few people with any background in international law would doubt that Russia’s annexation of Crimea raises serious questions of compliance with international law. This has certainly been the position of contributors to Opinio Juris, for instance of Kristin Hausler and Robert McCorquodale, Rhodri Williams, and Chris Borgen. Elsewhere, Anne Peters has written a thoughtful article about Crimea’s secession.

One would expect the annexation of Crimea to spark equally lively discussions among Russian experts in international law, as well as prompt them to voice their views before foreign audiences. Importantly, in accordance with Article 15(4) of the Russian Constitution both “universally recognized norms of international law and international treaties” prevail over domestic laws. Thus, the validity of Crimea’s absorption by Russia under international law ought to be of immediate practical concern to Russian lawyers.

However, so far Russian academics and practitioners have largely remained in the shade, at least on the international arena, while Russian state officials felt free to interpret international law up to the point of redesigning it. Yet – what do we know about Russian lawyers’ attitudes to the annexation of Crimea?

One of the rare English-language documents produced by Russian experts in international law is a June 2014 appeal to the ILA by the President of the Russian Association of International Law, Prof. Anatoliy Kapustin. Before that, in April 2014 the same Association held a conference on the international law aspects of Crimea’s integration into Russia together with the Russian Academy of Diplomacy (in Russian). This event, which brought together senior Russian academics and diplomats, reflects the very close connections between the international law profession and the state apparatus that exist in Russia. Taken together, Prof. Kapustin’s letter and the April 2014 conference seem to espouse the views of Russia’s international law elite on Crimea.

Two main issues occupied the minds of Russian lawyers. First, they mused over the deep “historical connections” between Crimea and Russia. Second, they condemned the “cruel lawlessness” and persecution of Russians by the “Kiev regime” (which fits uneasily with the UN Human Rights Commissioner’s observations on human rights abuse in Crimea and separatist-controlled areas). These two basic claims, strongly reminiscent of the official Russian rhetoric and never questioned, were then framed as various legal and quasi-legal arguments.

Interestingly, both Prof. Kapustin and the conference participants went beyond relying on Kosovo. For instance, Prof. Stanislav Chernichenko referred to the restoration of Russia’s “historic rights” rather than to Crimea’s self-determination (although he did not discard the latter either). Indeed, he noted that Russia’s reliance on Kosovo’s precedent was inconsistent with Russia’s own position on Kosovo. Instead, he drew attention to India’s annexation of Goa in 1961 and the USSR’s annexation of South Sakhalin in the aftermath of World War II. Prof. Kapustin went farther back in history and referred in his letter to Northern Schleswig’s 1920 plebiscites for reunion with Denmark.

The annexation of Crimea, however, defies comparison with either India’s decolonization or territorial reconfigurations brought about by the World War II, let alone the Schleswig plebiscites conducted some 25 years before the UN Charter. In recognition of that, Prof. Chernichenko and his colleagues fell back on the alleged transgressions of the “Kiev regime”. Whereas in other circumstances Russia could attempt to remedy the “historic injustice” of Crimea’s separation by negotiations with Kiev, they claim that the “reunion” with Russia was the only viable option in the circumstances.

Dr. Elena Konnova, a guest participant from Belarus, questioned whether either the 1954 transfer of Crimea from Russia to Ukraine within the USSR or arrangements made after Ukraine’s independence in 1991 were incompatible with the jus cogens rule of self-determination. If yes, then in her opinion, international recognition of Ukraine’s borders could not remedy that defect. While a sensible attempt to rationalize her Russian colleagues’ sentiments, I wonder how far this argument would bring them. First, it is not obvious that self-determination of the Crimea’s “nation” (if at all existent) would require Russia and Ukraine to permit them to choose their new homeland upon the breakdown of the USSR, as opposed to granting Crimea autonomy within Ukraine. Second, one might think that allowing past violations of jus cogens to subvert modern borders would be destructive and would potentially nullify the restrictive approach of international law to remedial secession.

Some scholars attempted to assess the validity of the 2014 Crimea’s referendum under Ukrainian constitutional law. For example, Prof. Oleg Khlestov – an experienced diplomat who headed the Soviet delegation at the negotiations leading to the VCLT 1969 – suggested that the Constitution of Ukraine “was not in force” at the time of the referendum because of the “coup d’etat” in Kiev.

In his turn, Prof. Georgiy Velyaminov tried to “drop” from the Ukrainian Constitution Article 73 that only allows territorial changes to be approved by a statewide referendum: he thought it was inconsistent with the right to self-determination under international law and therefore invalid. Even if that inconsistency existed, such “rectification” of Ukraine’s Constitution is flawed. Ukraine is a dualist state and, pursuant to Article 9 of Ukraine’s Constitution, the Constitution prevails over any rules contained in international treaties that Ukraine may ratify.

With regard to international law, several participants of the April 2014 conference grappled with the issue of whether Crimea’s population is a “nation” for the purposes of the right to self-determination. In their view, the predominantly Russian population of the peninsula ought to qualify as a separate “nation”. As to the requirements for remedial secession, naturally they argued that no internal self-determination was possible for the residents of Crimea in “pro-fascist” Ukraine.

Apart from the more formal statements or events such as those described previously, some Russian lawyers chose to express their private opinions on Crimea in the Internet or in print. Grigoriy Vaypan (PhD Candidate at Moscow State University) wrote a piece for the Cambridge Journal of International and Comparative Law’s blog about the “highly doubtful” validity of Ukraine’s ousted ex-President’s invitation for Russia to invade Crimea before the referendum.

Yet other lawyers prefer Russian-language media and apparently address their concerns to domestic lay audience. Private practitioners Marat Davletbaev and Maria Isaeva regret (in Russian) the “archaic language of Russian diplomacy”:

“In Crimea’s case, Russia – regardless of whether it is right or wrong – communicates with the world in a hopelessly archaic language, as if it were unaware either of the criteria for establishing aggression, or of the serious tensions between the right to self-determination guaranteed by the UN Charter and territorial integrity, or of the rules on non-interference with internal affairs of states, or of the basic requirements for application of the R2P (responsibility to protect) doctrine, or of the definition of “annexation”.

This contrasts with the views of senior academics. Thus, Prof. Ivan Kotlyarov of the Academy of Internal Affairs is another proponent (in Russian) of the “imagine a fascist regime in Ukraine” approach to international law. He somewhat enigmatically argues that the right to self-determination is being denied to citizens of Ukraine (apparently by the government of Ukraine) and that a “genocide” is being perpetrated against the population of the Eastern Ukraine. Ria Novosti, a Russian news agency, quotes (in Russian) Prof. Tatyana Neshataeva of the Academy of Justice claiming that the right to self-determination trumps territorial integrity and, therefore, Crimea’s integration into Russia is lawful.

In conclusion, it would also be fair to note that any criticism of Russia’s annexation of Crimea largely remains a marginal idea in Russian legal media. For example, a well-known website Pravo.ru omits any references whatsoever to potential unlawfulness of the annexation when reporting legal developments in Crimea, e.g. introduction of Russian legislation and judicial reforms (both in Russian). As mentioned previously, this is particularly surprising in view of Article 15(4) of the Russian Constitution.