Ukraine Insta-Symposium: Potential Non-recognition of Crimea

[ 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. Kosovo declared its independence on February 17 2008. The United States of America was the first country to formally recognize Kosovo as a sovereign and independent state on February 18, 2008. However, in contrast to the European Union’s collective handling of the recognition of other former Federal Republic of Yugoslavia countries, the Union deferred the Kosovo question to its individual members. While the majority of EU member countries individually recognized Kosovo as an independent state, Spain refused to recognize Kosovo’s independence, as “it does not respect international law.” Similarly, Cyprus, Greece, Romania, Bulgaria and Slovakia have refused to recognize Kosovo’s independence. In the process related to Kosovo’s potential candidacy for EU membership, the European Commission maintains that the designation of Kosovo as a potential candidate “is without prejudice to positions on status, and is in line with UNSCR 1244 and the ICJ Opinion on the Kosovo Declaration of Independence.”

Kosovo has not applied for UN membership. Russia has threatened to use its seat in the UN Security Council to block Kosovo’s membership application. According to Article 4(2) of the UN Charter, “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” However, on June 29, 2009 the Republic of Kosovo became the 186th member of the International Monetary Fund. Article 2 Section 2 of the Articles of Agreement of the IMF states, “Membership shall be open to other countries at such times and in accordance with such terms as may be prescribed by the Board of Governors”

However, the admission to the IMF cannot be considered as an expression of the 188 member states’ collective will in relation to the statehood status. The IMF’s voting rules lay at the center of this conclusion. The IMF decision-making process on membership is different from the process within the UN and the European Union. The will of the Fund’s Board of Governors that makes the decision on membership is not the collection of the individual votes of IMF’s member states. The member states’ votes are not equal; for instance, the United States’ voting share is approximately 17% while Ukraine’s is approximately 0.6 %.

On the other hand, the recent admission of South Sudan as the 193rd member state of the United Nations has left little doubts as to its statehood status. UN Secretary General Ban Ki-moon welcomed the country to the “community of nations.”

Collective non-recognition impedes a secessionist entity’s road to statehood. The principle of collective non-recognition enshrined explicated in the ILC Articles on State Responsibility Art. 41(2) that states “no State shall recognize as lawful a situation created by a serious breach’ of an obligation arising under a peremptory norm of general international law.” The ILC has regarded the prohibition of aggression and the illegal use of force, amongst others, as peremptory norms. The ICJ affirmed the principle in the advisory opinions in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) and in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. According to Hersh Lauterpacht “non-recognition is based on the view that acts contrary to international law are invalid and cannot become a source of legal rights for the wrongdoer. That view applies to international law as one of the “general principles of law recognized by civilized nations.” In the cases of the secession of Katanga from the Republic of Congo in 1960, the case of Southern Rhodesia from 1965-1980, secession attempts of South Africa’s states of Transkei, Bophutgatswana, Venda and Ciskei, the League of Nations and the United Nations openly urged for non-recognition of aspirant states.

The first clear-cut case of non-recognition took place in the 1930s with respect to a state of “Manchukuo” — the former Manchuria– which Japan took over from China in 1931. Although some individual states, notably El Salvador, Poland, Hungary, Spain and Italy, did recognize Manchukuo, the League of Nations refused to do so, specifically declaring that “it is incumbent upon the Members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations and to the Pact of Paris.” The non-recognition of the TRNC is another example. Following a military coup by Greek officers which called into question the internationally guaranteed constitutional framework of Cyprus, Turkey sent in troops on 20 July 1974 and occupied the northern part of the island. Although the intervention was clearly aimed at supporting the Turkish minority, it was only on 15 November 1983 that the “Turkish Republic of Northern Cyprus” was proclaimed. UN Security Council immediately denounced both the invasion and the declaration of independence as a violation of the sovereignty of the Republic of Cyprus and as an invalid attempt to create a new state. Security Council Resolution 541 expressly deplored “[…] the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus” and called “[…] upon all States not to recognize any Cypriot State other than the republic of Cyprus.” Only Turkey so far has recognized TRNC. Former Autonomous Republics of Georgia, Abkhazia and South Ossetia declared independence, in 1992 and 1990 respectively, after secessionist conflicts with Georgian forces where secessionist troops were largely aided and backed by Russia. Russian troops invaded the territory of Georgia in August 2008.

On August 26, 2008 Russian Federation recognized South Ossetia and Abkhazia. Nicaragua, Venezuela, and the microstates of Nauru and Tuvalu have also recognized South Ossetia and Abkhazia. However, the international organizations have put in place the policy of collective non-recognition of South Ossetia and Abkhazia. The list of decisions by international organizations confirming the territorial integrity of Georgia and urging non-recognition of the two entities is boundless. The EU, NATO, the Chairman of OSCE, and the Council of Europe have all reaffirmed support for Georgia’s territorial integrity, condemned Russia’s recognition of two secessionist entities and called upon withdrawal of this decision.

At this stage the evidence suggests that Crimea might follow the footsteps of the TRNC, Abkhazia, South Ossetia. The UN Secretary-General, the Council of Europe, NATO, the European Union, the Visegrad Group, Nordic-Baltic counties all have made collective statements deploring Russian actions in relation to Ukraine and supporting the territorial integrity of Ukraine. The EU High Representative for Foreign Affairs Catherine Ashton declared that, “The unity, sovereignty and territorial integrity of Ukraine must be respected at all times and by all sides. Any violation of these principles is unacceptable.” The leaders of the G7 countries, Canada, France, Germany, Italy, Japan, UK and The US, went further and issued a strong statement specifically recognizing the Crimean referendum as illegal.

However, states have not unanimous in their condemnation of Crimea’s secessionist move. A number of states, such as Israel and Pakistan expressed hope on the peaceful settlement of the crisis without directly stating their normative position on Crimea’s potential independence. Nevertheless, at this point, these states form part of a small minority. At this point, all major international organizations have made collective statements in support of the territorial integrity of Ukraine and the inviolability of its sovereignty, while the G7 leaders made an express statement in relation to the non-recognition of the referendum. After the referendum we might witness another cascade of collective statements specifically about the non- recognition of the referendum results. These statements might launch Crimea on a familiar path of unrecognized entities.