Ukraine’s UNCLOS Arbitration Claim Against Russia May Depend Upon Philippines-China Precedent

by Julian Ku

After months (or even years) of threats, Ukraine finally filed an arbitration claim against Russia under Annex VII of the UN Convention of the Law of the Sea.  According to this statement from the Ukrainian Ministry of Foreign of Affairs, the claim will focus on Russia’s actions in the maritime zones bordering Crimea.

Since the Russian Federation’s illegal acts of aggression in Crimea, Russia has usurped and interfered with Ukraine’s maritime rights in these zones.  Ukraine seeks to end the Russian Federation’s violations of UNCLOS and vindicate Ukraine’s rights in the Black Sea, Sea of Azov, and Kerch Strait, including Ukraine’s rights to the natural resources offshore Crimea which belong to the Ukrainian people.

I discussed Ukraine’s claim back in February here, as well as Russia’s likely response.  I can’t find a copy of the Ukrainian statement of claim online, but the MFA description sounds like it will be pretty similar to the approach pioneered by the Philippines in its claim against China.  Ukraine will seek to avoid Russia’s Article 298 declaration excluding jurisdiction relating to sea boundary delimitations by not asking the tribunal to rule on sea boundaries. Ukraine will not seek to have the arbitral tribunal declare that the annexation of Crimea is illegal. Rather, the focus will be on specific actions Russia has taken in the Crimea maritime zones, which Ukraine is going to assume is part of Ukraine.

It will be interesting to see if Russia responds at all to this arbitration, or whether they follow China’s example and simply boycott the arbitration process completely.  I am not sure Russia’s jurisdictional defense is as strong as China’s (which lost anyway), so I am betting Russia simply declares it will not even show up, while loudly declaiming the legality of their actions.  Stay tuned.


Ukraine Prepares Even More International Lawsuits That Russia Will Ignore

by Julian Ku

Things are not going well for Ukraine.  It has lost Crimea, effective control over eastern parts of its territory, its divided government is hampered by corruption which is sparking more internal violence, and its economy is doing poorly.  Russia is the cause of many (though not all) of its problems, so it is not surprising that Ukraine is looking to try to retaliate somehow and in some way.

This past week, Ukraine’s government announced that it is preparing to bring claims against Russia in the International Court of Justice.

Along with three interstate claims filed to the European Court of Human Rights (ECHR), we’re preparing for filing a claim to the International Court of Justice on the Convention for the Suppression of the Financing of Terrorism and racial discrimination, as we have real facts of discrimination, in particular, Crimean Tatars on the territory of Crimea,” [Deputy Justice Minister for European integration Serhiy] Petukhov said in the parliament on Wednesday.

To my surprise, Russia has actually agreed to compulsory dispute settlement under the ICJ for both treaties.  Under Article 24 of the Terrorism Financing Convention,

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

Similarly, under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination:

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

On this latter provision, it is worth noting that the United States has reserved its liability by agreeing to jurisdicition only upon its specific agreement.  Russia did not make such an argument in Georgia’s ICJ case against Russia, so it is unlikely to do so again.

So in addition to a case under the UN Convention for the Law of the Sea, Ukraine could file at least two more international court actions against Russia over Crimea and other actions.  But will it? Russia has been largely unaffected by the Arctic Sunrise case, and it doesn’t seem in a mood to reconcile.  But, like the Philippines against China, Ukraine may simply think it doesn’t have any better options.

As Ukraine Prepares to Take Russia to UNCLOS Arbitration Over Crimea, I Predict Russia’s Likely Reaction

by Julian Ku

There have been noises coming out Ukraine for years that its government was preparing an international legal action against Russia over Crimea.  It looks like Ukraine has finally prepared to pull the trigger. According to this report, Ukraine is ready to charge Russia with violating the UN Convention on the Law of the Sea in the following ways.

“First, the seizure of fields with mineral reserves and illegal oil and gas on the continental shelf of Ukraine in the Black Sea. Secondly, the unlawful seizure of power to regulate fish catch, unlawful fish catch and not allowing Ukrainian fishing companies to catch fish in the offshore zone near the Crimean peninsula. Third, construction of a gas pipeline, a power line and a bridge across the Kerch Strait without the consent of Ukraine, the unlawful blocking of transit of Ukrainian vessels across the Kerch Strait and the unlawful seizure of navigation rights. Fourth, the conducting of studies of archeological and historical sites in the Black Sea bed without the consent of Ukraine,”

Both Russia and Ukraine have specified arbitration under Annex VII of UNCLOS. So if Ukraine filed a claim, it would follow the same procedure and rules as the one recently followed in the Philippines’ case against China and the Netherlands’ claim against Russia (over the Greenpeace seizures).

Unfortunately for Ukraine, I think I already know how Russia will react to any such arbitral claim.  First, like China has done against the Philippines, it will invoke its declaration under Article 298 excluding disputes “relating to sea boundary delimitations” from the jurisdiction of the UNCLOS arbitral tribunal.

Second, and like China again, Russia will almost certainly boycott the UNCLOS arbitration by refusing to appoint any arbitrators and refusing to show up at the hearings.  It followed this path in the Greenpeace “Arctic Sunrise” arbitration and there is no reason to think it will react any differently this time.

So although Ukraine probably has a good claim under UNCLOS, and it has a good case for jurisdiction as well, it should not get too excited.  Even if it wins its arbitration, it will probably not accomplish a great deal.

Is Russia’s Boycott of an Arbitration Brought Under Ukraine-Russia Bilateral Investment Treaty a Sign of a Trend?

by Julian Ku

When a country is brought to arbitration under a treaty, it often challenges the jurisdiction of that arbitral tribunal in arguments before that tribunal. But in recent years, we’ve seen several examples of countries that have simply chosen to “boycott” or not participate in the arbitral hearings whatsoever.

China adopted this approach in its ongoing United Nations Convention on the Law of the Sea (UNCLOS) arbitration with the Philippines (which it recently confirmed again this past December). Russia also followed this strategy by simply not showing up at the International Tribunal on the Law of the Sea ITLOS provisional measures hearing related to its seizure of the Greenpeace vessel Arctic Sunrise.  And Russia has recently confirmed that it will adopt this “non-participation” approach with respect to a recent arbitration brought by a Ukrainian business alleging expropriation of its ownership of an airport in Crimea.

Three cases do not make a trend, but observers of international law and adjudication should take notice nonetheless.  Will “non-participation” prove a viable strategy for states (as opposed to actually making legal arguments against jurisdiction)?  Granted, as far as I can tell, neither China nor Russia have very strong arguments against jurisdiction in the cases above.  So is it better to simply walk away?  If the state has no intention of complying with a negative award, it might make rational sense to simply avoid the process altogether.  Will other states try this approach?


Guest Post: What do Russian Lawyers Say about Crimea?

by Anton Moiseienko

[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 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.

Should the U.S. Use “Lawfare” Against Russia?

by Julian Ku

Back in 2007, Messrs David Rivkin and Lee Casey’s Wall Street Journal op-ed helped popularize the term “lawfare” among U.S. conservatives, who have used the term to decry legal tactics that challenged US policy in the war on terrorism.   As they defined it then:

The term “lawfare” describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.

So it is somewhat surprising that the duo, both very influential commentators among U.S. conservatives, is advocating a lawfareish approach to combatting Russia’s annexation of Crimea and its threats against Ukraine. Here is some of their advice in today’s WSJ.

As a start, the Obama administration should seek a U.N. General Assembly resolution requesting the International Court of Justice’s opinion on the legality of the Russian annexation of Crimea.

The U.S. and its allies should also challenge the legality of Russia’s actions in every conceivable legal venue, whether domestic or international.

Nongovernmental organizations, which cast themselves as guardians of the international order, have a role to play in condemning and challenging in courts of law and in public opinion Russia’s actions against Ukraine

In other words, the authors want to use “lawfare” against Russia.  I agree that the US has good legal arguments against Russia on this issue, and that the US also had good (but not unassailable) legal arguments for its war on terrorism policies. But I don’t think that the US invocation of international law, nor its employment of “lawfare” to highlight international law, will be very successful against Russia.  Lawfare’s main impact against the U.S. was to tie up many of its policies in domestic U.S. litigation. I don’t see that as an avenue against Russia.

Moreover, the employment of lawfareish pressure tactics could easily be used as an excuse to avoid taking more strenuous or effective actions (e.g. tougher sanctions, increased military aid, etc.).  I am not sure US conservatives should be eager to jump on this lawfare bandwagon, no matter how good the cause.

Kosovo, South Ossetia, and Crimea: the Legal Rhetoric of Intervention, Recognition, and Annexation

by Chris Borgen

Following up on my previous post, I want to look at Russia’s rhetoric regarding Crimea and how it relates to its rhetoric regarding intervention and recognition in Kosovo and South Ossetia. While countries may use arguments that start to seem inconsistent, Russia’s use of “law talk” is especially striking because it uses legal rhetoric so often, even when it has rather weak arguments. While Russia deploys legal language, increasingly they are not the concepts of international law as generally accepted. Rather, Russia is building a revisionist conception of international law to serve its foreign policy needs regarding the states of the former Soviet Union.

But, first, let’s take a few steps back. For President Putin, the situation in Crimea has its roots in Kosovo. Kremlin watchers have argued that the loss of Kosovo was a traumatic experience for President Putin and Foreign Minister Sergei Lavrov. (For some background on the run-up to Kosovo’s declaring independence, please see this post.)

In his speech of March 18, President Putin revisited the disagreements Kosovo declaration of independence, even quoting the U.S.’s argument before the ICJ:

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

This idea that the residents of Crimea just want the same ability to become a country that those in Kosovo had is rhetorically appealing. (And keep in mind the combination of legal rhetoric with ethnic grievance in his quote, I want to come back to that.) But wanting to be a country does not mean you have the right to become a country. As discussed before, there is no general right to secession, regardless of referendum results.

However, there are many differences between the two cases: Kosovo had been under international administration for close to a decade, its final status was left open in the UN Security Council Resolutions, it was the site of significant ethnic violence. None of that is true in Crimea.

But what is especially interesting is how Russia has changed what it is describing as the lesson of Kosovo. In 2008, Russian Foreign Minister Lavrov called Kosovo’s potential separation from Serbia a “subversion of all the foundations of international law, . . . [a] subversion of those principles which, at huge effort, and at the cost of Europe’s pain, sacrifice and bloodletting have been earned and laid down as a basis of its existence.”

In his March 18 speech, though, President Putin took a different tack. While (Serbia’s) sovereignty and territorial integrity were the focus of Russian diplomacy concerning Kosovo, there is little talk now about protecting Ukraine’s sovereignty. Rather, President Putin spent the opening sections of his speech decrying the historical mistake of handing Crimea over to Ukraine “like a sack of potatoes.” And what of agreements, such as the Budapest Memorandum, recognizing the “existing borders of Ukraine,” respecting Ukraine’s territorial integrity, and reaffirming the obligation not to use or threaten to use force? President Putin explained “Russia seemed to have recognized Crimea as part of Ukraine, but there were no negotiations to limit borders.” (Emphasis added.) That is contradicted by the text they actually signed. What about sovereignty? “It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to.” (Perhaps he was confusing change of government with dissolution of a state.) And then “the residents of Crimea and Sevastopol turned to Russia for help in defending their rights and their lives…”

Once again, this is an argument based on irredentism and a sense that borders and sovereignty can become rather wispy and insubstantial when you hear the call of people of the same ethnicity or who speak the same language as you do. (Not necessarily the same citizenship, mind you: ethnicity and/or language.)

From here, he opens his view to the state of international law… (Continue Reading)

Guest Post: The Russia-Crimea Treaty

by Gregory H. Fox

[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.

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

by Chris Borgen

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, and recognition of a belligerency, 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?…         (Continue Reading)

Ukraine Insta-Symposium: Potential Non-recognition of Crimea

by Anna Dolidze

[ Dr. Anna Dolidze is an Assistant Professor in the Faculty of Law, the University of Western Ontario.]

On Sunday the inhabitants of the Ukrainian Autonomous Republic of Crimea voted in a referendum on whether Crimea should become part of the Russian Federation or regain the status under the 1992 Constitution as part of Ukraine. A March 11, 2014 Declaration of Independence by the Parliament of the Autonomous Republic of Crimea preceded the referendum. The Declaration specifically referenced the International Court of Justice’s decision in relation to the status of Kosovo. According to the preliminary results published by the Crimean authorities about 95% of voters voted in favor of the union with Russia, while the overall turnout was 81.%.

While the results were celebrated in Simferopol, Russia’s President Vladimir Putin signed a decree recognizing Crimea’s independence. However, this post argues that the Crimean Republic might become subject to the doctrine of non-recognition. The initial evidence suggests that it might follow the footsteps of other self- declared independent entities, including Abkhazia, South Ossetia, and Turkish Republic of North Cyprus (TRNC) that have declared independence, yet failed to attain statehood partly due to the application of the doctrine.

As Thomas Grant explains in his book The Recognition of States, Law and Practice in Debate and Evolution recognition has served international society as a device by which to respond to changes in the world public order and the emergence of new states. In the process of the disintegration of the Union of the Soviet Socialist Republics (USSR) and the Federal Republic of Yugoslavia (FRY) the principles on recognition acquired renewed importance. Professor John Dugard points out that the recognition by other states remains important even to those who share prevalence of declaratory doctrine of recognition, which maintains that a political community that meets the requirements of statehood automatically qualifies as a “State” and that recognition by other states simply acknowledges “as a fact something which has hitherto been uncertain.” For example, although the Supreme Court of Canada, discussing the legality of possible secession by Quebec from Canada, adopted the declaratory theory of recognition, it emphasized “the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states.” Although recognition of states is primarily a bi-lateral affair, as Professor John Cerone notes, collective recognition or non-recognition by an overwhelming majority of states may impact the question of the existence of a state by influencing the application and appreciation of the Montevideo criteria on statehood.The admission to the United Nations and the European Union (the European Communities previously) has been acknowledged as a form of collective recognition that significantly influences the statehood status.

The recognition of Kosovo is an interesting example in this regard. It might be argued that the recognition of Kosovo bears the traits of collective recognition, but in fact it remains to be an individualized affair among states….(Continue Reading)

Ukraine Insta-Symposium: Intervention and Colonialism as Responses to Alleged Fascism

by Boris Mamlyuk

[Boris N. Mamlyuk, Ph.D., is an Assistant Professor of Law at the University of Memphis School of Law.]

Julian Ku makes an interesting observation regarding Russia’s fact-based arguments in support of Crimea, versus what most commentators see as a weak legal case for self-determination.  Over the past week, I’ve tried to offer several mapping exercises in order to explore the expanding range of international law arguments and potential violations.  The purpose was by no means to describe a “Russian point of view,” or to criticize U.S. international law commentators, of which I am one.  Rather, the attempt was to assume in good faith the factual assertions proposed by Russia in support of Crimean independence, and then to explore the ramifications of the current standoff from the perspective of international law. 

Russia’s mounting argument for humanitarian intervention beyond Crimea, in Eastern and Southern regions of Ukraine, needs to be scrutinized carefully.  Thus far, Russia seems to be merely reserving the right to intervene, and to my knowledge, the Russian government has not articulated a standard for humanitarian intervention in Ukraine, or a ‘red line’ that would trigger an R2P intervention.  Short of that, we can consider the most recent standard for humanitarian intervention, formulated in the UK’s guidance document on the proposed intervention in Syria.  According to this guidance document, humanitarian intervention is permissible where:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).  (emphasis added).

These elements fall far short of the R2P ‘three pillar’ approach, which includes an express responsibility to prevent humanitarian catastrophe.  The current situation in Ukraine, while fluid and dangerous, does not seem to have risen to the level of extreme humanitarian distress required for intervention.  What Russia seems to be doing, then, is positioning itself for an intervention in the event of further escalation of violence… (Continue Reading)

Winding-Up the Ukraine Insta-Symposium

by Chris Borgen and Roger Alford

Our thanks to all who have contributed to the conversation here on Opinio Juris about the many legal issues related to the situation in Ukraine.

Over the past week we have had guest posts on topics such as Russian rule-breaking as power politics, the use of force under international law, the international humanitarian law issues involved in the Crimean crisis, the limits of intervention by invitation (1, 2), the law of self-determination, lessons from the Aaland Islands dispute, the Russian/ Ukrainian Black Sea status of forces agreement, and transitional justice in Ukraine and Russia.

And, that is not to mention all the posts by the regular Opinio Juris bloggers on topics such as the Crimean referendum (1, 2), Russia’s “citizenship power play,”  the Presidential authority for visa restrictions, whether Yanukovich could request Russian intervention, and the efficacy-or lack thereof-of international law (1, 2, 3).

Further, still, in addition to the main posts, we have dozens of reader comments that have been interesting, enlightening, and informative. Thank you!

At this point,  if there are any more submissions for potential posts, we need to receive them by 3:00 pm Friday (US Eastern Time) so that those selected can be posted this weekend.

Although this symposium is drawing to a close, we at Opinio Juris will continue writing about the ongoing issues in Ukraine.

Once again, thank you, everyone, for participating in this discussion and contributing to our understanding of the situation in Ukraine.

We hope you will continue to participate as we continue exploring the international legal issues in the conflict over Ukraine’s future.