Russia’s Recognition of the DPR and LPR: The Revival of the Constitutive Theory of Recognition?

[Dr. Sava Janković is an Assistant Professor at the Institute of Law Studies, Polish Academy of Sciences, where he pursues research under the National Science Centre grant No 2020/37/K/HS5/02762. Professor Volker Roeben is the Dean and Professor of International Law at Durham Law School.]

Background

The Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR) declared independence from Ukraine in May 2014, following President Yanukovych’s overthrow in the 2014 Ukrainian revolution. Both ‘’Republics’’ initially merged into a Union of People’s Republics (Novorossiya), a confederation project which collapsed after a year of existence and did not attract any international recognition. Neither Russia nor Nicaragua nor Venezuela, which recognized South Ossetia and Abkhazia, were willing to extend their support to de facto independent administrations.

2021/2022 Political-Military Crisis in Ukraine

The crisis in Ukraine re-escalated in the late autumn of 2021 when a large number of Russian military troops amassed near the Ukrainian border and in Belarus. The West interpreted this move as an implied threat of force, presupposing violation of Article 2(4) of the UN Charter. Russia and China, on the other hand, treated the relocation of an army as a domestic matter. Things have drastically changed with the recognition by Russia of two separatist regions in eastern Ukraine on 21 February, collectively known as Donbas, and the ensuing Russian invasion of Ukraine of 24 February. The latter is a flagrant violation of Article 2(4) of the UN Charter and Article 2(3), which obliges all UN Members States to settle their international disputes by peaceful means.

Recognition in International Law

Given the narrow scope of this piece, only the question of international recognition and its importance will be discussed, placing a rather substantial emphasis on its inter partes character.

The majority of international legal scholarship contends that recognition is purely declarative, ergo, does not constitute statehood. This stance has been reflected in judicial practice and treaties. For instance, in its Opinion No. 1, the Badinter Commission emphasized that ‘the effects of recognition by other States are purely declaratory’, while Article 3 of the Montevideo Convention stipulates that ‘the political existence of the state is independent of recognition by the other states’. Yet, the recent recognition of two Ukraine’s breakaway regions by Russia ‘’internationalizes’’ (in relative terms) facts earlier considered as domestic. Even though the new, so far bilateral, relationship does not produce effects for states withholding recognition to the two ‘Republics’, it creates a new legal reality, akin to Norther Cyprus, also recognized solely by one country – Turkey.

The West heavily criticized the decision of President Putin, who approved the recognition bill presented to him by the Russian State Duma. The UK, German, Polish, US and EU leaders unanimously stated that the recognition of the self-proclaimed regimes amounts to the violation of international law. This was reiterated at the eleventh Emergency Special Session of the UN General Assembly devoted to the Russian invasion of Ukraine by several delegates, who urged Russia to reverse the decision related to the status of Lugansk and Donetsk.

Both the effects that the acts have produced in international law (which will be discussed later) and the following critique demonstrate that recognition is not meaningless and carries a certain weight.

Did the Russian Recognition Create Two New States?

As indicated, according to the prevalent view in the literature recognition does not create a state (perhaps with the exception of widespread recognition). It is created by the internal facts. Whether two entities in Donbas constitute states in objective legal terms, that is, fulfil the requirements specified in Article 1 of the Montevideo Convention (a territory, a people, a government, the capacity to enter into relations with the other states), supplemented by the legality precepts (not created in violation of international law) and gauged by the independence parameter, is highly questionable. The military and political dependence on Russia seems to be a decisive factor in rejecting statehood of both ‘’Republics’’.

The Legal Value of Recognition

Two separatist ‘’Republics’’ constitute now states for Russia, and this is, in principle, an irrevocable decision, having broad ramifications. Firstly, Russia will be able to enter into agreements with the ‘’Republics’’ in an inter-state format, as envisaged by the Vienna Convention on the Law of Treaties. President Putin immediately signed with the leaders of the DPR and LPR treaties on friendship, cooperation and mutual aid. Secondly, Russia will be able to establish diplomatic and consular relations with the ‘’Republics’’ which are customarily exercised between sovereign states (see Article 2 of the Vienna Convention of Diplomatic/Consular Relations) and therefore enjoy all accompanying rights and privileges. Moreover, Russia, following the act of recognition, will no longer consider itself bound by rights and obligations intrinsic to Ukrainian statehood as the right to respect, the obligations not to intervene in domestic affairs, and the obligation not to violate the territorial integrity. In addition, Russia, will more easily provide for the defence of the DPR and the LPR. It will also be able to use force in collective self-defence under Article 51 of the UN Charter, for the protection of own citizens in Donbas (the majority of whom already hold Russian passports) and on invitation by the leaders of the DPR and LPR). It, therefore, seems that recognition in practice matters, especially if it came from a great power, which endows an entity with all state’s rights and obligations against the recognizing state. This thesis is to a great extent validated by the reaction of the international community, which has introduced a set of sanctions on Russia.

The Legality of the Declarations Their Recognition by Russia

The question may arise whether the declarations of independence and ensuing unilateral (or collective) acts of recognition can be at all illegal. Regarding declarations, the answer can be found in para. 81 of the Kosovo Advisory Opinion, where the ICJ ruled that declarations connected with the use of force or the breach of other peremptory norms would be illegal. Regarding acts of recognition, the answer can be found in Article 42 (2) of the ILC Articles on State Responsibility outlining the duty not to ‘recognize as lawful’ a situation created by the illegal use of force or other serious breaches of a jus cogens obligation. Otherwise, the declarations of independence and resulting recognitions are not deemed illegal.

The debate whether recognition by Russia was legal would involve the analysis to what extent  Russia was involved militarily in the creation of Donbas, whether there existed a necessity of providing security and fostering the right of self-determination (to which President Medvedev alluded while recognizing South Ossetia and Abkhazia) as well as whether the recognition was not premature (the conflict has lasted already 8 years, with no territorial changes). In a nutshell, however, it seems that the statehood quality of the subjects seeking recognition is not convincing, and that arguments on genocidal policies in Donbas appear exaggerated (see Ukraine’s submission to the ICJ or a comment of Wilmshurst), especially given the peace negotiations led by the Normandy contact group. In consequence, Russian recognition is not legally well-grounded.

Which Laws Have Been Violated by Russian Recognition?

If DPR and LPR lack statehood (due to the improper creation or non-fulfilment of basic statehood criteria), then Russia’s decision to recognize is illegal too and entails a breach of pertinent obligations. These obligations are, among others, the obligation to respect territorial integrity, enshrined in the UN Charter and UN Friendly Relations Declaration. Russia, by breaching this obligation and entering military into Ukraine, committed also an act of aggression, defined in UN General Assembly Resolution 3314. In this case, Russia breached the Budapest Memorandum guaranteeing Ukraine’s sovereignty and territorial integrity as well as the Minsk Agreements endorsed by the UN Security Council Resolution 2202, meant to bring solutions to the conflict in Donbas. In short, the illegality of a territorial creation presupposes illegality of recognition, which, in turn, constitutes a breach of relevant international law provisions.

So far, the DPR and LPR have not been recognised by any other state than Russia and it seems that if recognition does accrue it will be very limited. States do not favour separatism and tend to pay respect to the territorial integrity principle – sometimes at the expense of the people’s right to self-determination. With regard to Ukraine, states in 2014 with a great majority of votes adopted Resolution 68/262 in the UN General Assembly (100 voted for, 11 voted against, 58 abstained), which denounced the unification of Crimea with Russia and underlined the territorial integrity of Ukraine. Similarly, on 2 March 2022, the UN General Assembly adopted Resolution Aggression against Ukraine with the support of 141 states (5 were against and 35 abstained) that in point 5 termed the Russian recognition of Donbas as a violation of territorial integrity and sovereignty of Ukraine and inconsistent with the Charter, whereas in point 6 called on Russia to ‘immediately and unconditionally’ reverse its recognition decision.

Conclusions

The recognition of the DPR and LPR by Russia reminds us of the legal importance of international recognition, as well as that it is important from whom the recognition stems. By the overwhelming condemnation by the West, it is evident that the institution of recognition cannot be understood as a mere, insignificant, confirmatory declaration of certain facts. To the contrary, the act of recognition of the DPR and LPR created a new bond between the ‘’Republics’’ and Russia creating a sphere of legal interactions, which by non-recognizing states will be considered as a breach of international law.

It is unrealistic to expect that the inter-subjectivist perception of the DPR and LPR’ statehoods will broaden, which means that both ‘’Republics’’ will not be able to exercise all attributes of statehood universally (avail of international judiciary, join the UN etc.). They will remain de facto states, unless they decide to follow in the Crimean footsteps and become part of Russia.