08 Mar Revisiting Crimea and the Utility of International Law
The recent invasion of Ukraine will likely revive the assertion that international law has failed to constrain Russian aggression, as occurred when the Autonomous Region of Crimea was annexed by Russia in March 2014. However, the utility of international law is not merely to prevent undesirable or illegitimate actions such as unlawful aggression against neighbouring states. International law also retains a useful role in standard setting and, when those standards are not adhered to, in imposing sanctions or counter measures. Whether those sanctions and counter measures are effective for the use of force is reflective of political will rather than a deficiency in the law. During its annexation of Crimea, Russia attempted to use international law to shield its actions from scrutiny and avoid consequences for breaching the prohibition on the use of force. Rather than marking a failure of the law, the Crimean situation highlighted that even though international law remains unable to deter powerful states from unlawful actions in the face of a weak collective security system, it nevertheless remains important for establishing standards of behaviour.
History and Geopolitics of Crimea
The annexation of Crimea by Russia presented a unique flashpoint for ethnic, religious, political and strategic tensions between Russia and Ukraine. Unlike Western states which had empires, Russia itself was an empire and its rise occurred concurrently with its rise as a nation-state. Consequently, Russia’s loss of empire also resulted in a loss of its very sense of being. Crimea was part of Russia for almost two centuries until it was transferred to the Ukrainian republic of the Soviet Union in 1954. While the direct connection of Crimea to Ukraine made geographical sense, at the time of transfer, 90 percent of residents were ethnic Russians. Premier Nikita Khrushchev’s rationale for the transfer remains unclear. He was an ethnic Ukrainian and some viewed the transfer as a gift to his homeland, but it is unlikely there was special significance attached as it was an internal transfer within the Soviet Union. Crimea’s status became a hot button issue after the dissolution of the Soviet Union because of the region’s strategic importance.
In the 1990s, Russia and Ukraine entered into several treaties reaffirming Ukraine’s independence and recognising its contemporary borders, including Ukraine’s sovereignty over Crimea. One of these agreements was the Black Sea Fleet Status of Forces Agreement (1997) permitting up to 25,000 troops to remain stationed at the Sevastopol naval base until 2022, which was extended the agreement until 2042 by the Kharkiv Agreement (2010). The stationed Russian troops are required to respect Ukrainian sovereignty and act in accordance with Ukrainian law. Russia maintained significant interest in Crimea and particularly in Sevastopol where the Black Sea Fleet is based, which continues to be regarded as a ‘city of Russian glory’, an honour bestowed upon it following World War II. The shared historical, cultural and economic ties between Russia and Ukraine have been emphasised by the former since the break-up of the Soviet Union. At the time of the Crimean annexation Russian President Vladimir Putin stated that any war between the two states would be a ‘fratricidal war’. The unique political ecosystem formed by Russia and Ukraine has been affected by increased involvement of Western states in Ukraine and NATO’s push towards Russia’s borders – a point of contention for Russia which has been reasserted in the current Ukrainian situation.
International Law as a Shield
Three main claims were made by the Russian leadership for its actions in Crimea which illustrate the continuing utility of international law. First, Russia claimed that Russian troop movements were in accordance with the Status of Forces Agreement and disassociated Russian troops from the actions of local armed groups in Crimea, whom it claimed it did not have control over. By attempting to act under the radar, either to evade attribution or create sufficient plausible deniability, for instance by using unmarked troops and declaring them to be self defence units set up by locals, Russia evidently accepted that blatant acts of aggression would be viewed as a violation of Article 2(4) of the UN Charter and to some degree was concerned about how its actions would be perceived by the international community.
Second, Russia attempted to use the defence of consent to legally validate its unauthorised entry into Crimea. On March 1, Russia claimed that the new Prime Minister of Crimea, Sergey Aksyonov, had requested assistance from Russia to restore order and peace. As the Crimean leader did not possess the authority to issue an invitation for intervention under international law, this claim was quickly abandoned. On March 3, Russian Foreign Minister Sergei Lavrov stated at the UN Security Council that Russia had received an invitation by ousted Ukrainian President Viktor Yanukovych to intervene in Crimea. As Yanukovych no longer retained de facto control of Ukraine, the validity of his invitation is not supported by effective control of the territory, nor could it be claimed that he retained popular sovereignty over Ukraine, as this applies only to military coups d’état and revolt in Ukraine extended only to widespread protests. The invitation for intervention claim nonetheless further elucidates Russia’s attempts to use international law to shield its actions in a cloak of legality, albeit unconvincingly. In addition to whataboutisms about the violation of international law by Western states, to justify Russia’s current invasion of Ukraine, Putin has claimed that the republics of Donbass requested assistance.
Third, as there was no armed attack on Russian troops to support the claim for self-defence under Article 51 of the UN Charter, the argument transformed into one for humanitarian intervention to protect Russian nationals in the region, although there was no evidence of widespread or systematic violations of human rights to support this. In other situations, such as Syria, Putin has been an ardent proponent against humanitarian intervention, stating ‘[t]he law is still the law, and we must follow it whether we like it or not’. In the weeks leading up to Crimea’s annexation, native Russian speakers in Crimea were granted Russian citizenship, similar to the policies used by Russia in South Ossetia in 2008 and Georgia in 2009, as an amplification of its ‘protective justification’ for its actions. Putin only generally asserted ‘a real threat to the lives and health of Russian citizens’ but did not establish that Russian nationals in Crimea were endangered by the transition of the Ukrainian government on February 23. Nevertheless, in his appeal to the Russian parliament, Putin declared that intervention was required to protect Russian nationals in Crimea, both military forces and citizens, and in doing so once again invoked international law as a shield for planned (and eventual) aggression.
The actions of Russia in Crimea in 2014 and in Ukraine in 2022 illustrate that international law remains unable to compel the compliance of states whose geopolitical interests conflict with established rules and standards. But compliance is only one measure of utility. In both situations Russia has justified its actions using the normative language of international law, reaffirming its importance as a mechanism for setting standards. The Crimean situation also highlighted that international law can be deployed as a shield for brazenly unlawful actions, which are enabled by a weak collective security system that remains unable to prevent the unauthorised use of force by powerful states. This does not mean that a violator state will avoid consequences; the sanctions imposed on Russia following the Crimean annexation and now the Ukrainian invasion attest to this. However, without changes to a collective security system hampered by the geopolitical interests of powerful states, Jessup’s words on the potential for international law to prevent aggression will continue to ring true: ‘Impotent to restrain a great nation which has no decent respect for the opinion of mankind, failing in its severest test of serving as a substitute for war, international law plods on its way, followed automatically in routine affairs, invoked, flouted, codified, flouted again but yet again invoked.’