Crimean secession and International Law

by Massimo Pascarella –

The inhabitants of Crimea will be remembered as having carried out the fastest secession of contemporary history. Within few days they succeeded, with the help of the Russian army, to take possession of the peninsula excluding any authority exercise of the Ukrainian government and to organize a flash referendum on 16 March 2014. The next day Crimea has obtained a de facto annexation by Russia.
The Russian Federation has come up with two “reasons” correlated to such annexation. First of all, according to the Kremlin, the peninsula (1) is historically a Russian territory. Crimea has been inhabited by hundreds of people over the centuries: from Cimmerian to Krymchaks, its territory has been under the control of many empires, from the Roman Empire to the Ottoman one.
It was only in 1783 that the Russian Empire conquered the region which has been Russian, under different statutes, for a century and a half.
After the formation of the Union of Soviet Socialist Republics (USSR) in 1922, Crimea was integrated as an autonomous republic: the Autonomous Soviet Socialist Republic of Crimea. Its statute was amended at the end of World War II, constituting an administrative division within the Russian Soviet Federative Socialist Republic, ceded in 1954 to the Ukrainian Soviet Socialist Republic. When the process of dismemberment of the USSR began, the population of Crimea tried unsuccessfully to restore the Autonomous Soviet Socialist Republic of Crimea. Still, their claims allowed them to obtain an autonomous status within the Ukrainian state, being firstly designated as Republic of Crimea and since 1995 – after a series of political actions put in place by Crimean authorities aimed at the independence – as Autonomous Republic of Crimea (2).
The second argument, consistently wielded in order to legitimize the Crimean annexation, is the so-called “gift” (3) of Nikita Khrushchev in 1954.
As a matter of fact, Khrushchev had never been the sole decision-maker of the Soviet state: he was First Secretary of the Communist Party, while the role of President of the Presidium of the Supreme Soviet was occupied by Kliment Voroshilov and the executive was headed by the President of the Council of Ministers, Georgy Malenkov.
The decision to “transfer” Crimea was taken collectively by Soviet political powers (4).
Consequently, the correlated changes were added to the Constitutions of the Russian Soviet Federative Socialist Republic (RSFSR) and the Ukrainian Soviet Socialist Republic (AHSN). Following the independence of the Ukrainian state, several amends have been adopted consolidating the territorial integrity and inviolability of Ukrainian borders.

Meanwhile in 1992, the State Duma (5) adopted a resolution concerning the decisions taken in 1954 about the annexation of Crimea by Ukraine: Russian deputies issued the legitimacy of the transfer and the need to discuss the status of the peninsula and the city of Sevastopol bilaterally.

The confrontation faced an end with the signing in Kiev on 31 May 1997 of the Treaty on Friendship, Cooperation and Partnership (6) between Russia and Ukraine, in the first official visit of Russian President Boris Yeltsin in Ukraine.
Consequently, the historical arguments advanced by the authorities of Crimea and Russia, regardless of their value on moral or political basis, have no legal soundness.

Right to secession.
The existence of a right “to external self-determination” for the population of Crimea and eastern Ukraine has been advanced not only by separatists but also by Russia and a limited number of states, such as Armenia and the Democratic People’s Republic of Korea.
However, this position does not seem correct from the standpoint of positive international law. As a matter of fact, it is not conceived a right to external self-determination outside decolonization circumstances.
The fact that positive law does not recognize to “peoples” or “ethnic groups” a right of secession outside decolonization situations does not mean that it is in in every case prohibited.
The theory of “remedial secession” envisages that a sub-state community suffering oppression and massive violations of human rights by the central government – and unable to exercise its right to internal self-determination – may have recourse to secession under certain conditions as last resort.
The theory of remedial secession cannot create an “exceptional” right for inhabitants of Crimea and eastern Ukraine to self-determination. This for at least two reasons:

1 – First, it should be noted that the theory of remedial secession remains very controversial and it is still not clear if it is accepted by positive law. It may be recalled in this regard that the starting point of the theory contemporary construction is represented by Resolution 2625 (7) (1970) of the United Nations General Assembly. This Declaration, hostile to secession, denotes that self-determination outside decolonization situations must not endanger the territorial integrity of independent states.
In the landmark ruling Reference re Secession of Quebec, the Supreme Court of Canada addressed the right to internal self-determination when it answered the question whether Quebec could secede from Canada. The Supreme Court noted that: “The recognized sources of international law establish that the right to self-determination is fulfilled through internal self-determination”. Furthermore, according to the Supreme Court, external determination could only be exercised in exceptional circumstances, when people’s rights are massively and gravely violated (8).
The Canadian Supreme Court, at the same time, stated that the right of self-determination is expected to be exercised within the framework of existing sovereign states while maintaining their territorial integrity, and that a right to external self-determination arises only in the most extreme cases (9).
It is noteworthy to mention that the International Court of Justice (IJC) has carefully avoided the issue in its opinion of 22 July 2010, preferring a very narrow meaning of the General Assembly request.

2 – The second reason (why the theory of remedial secession is not applicable in the Crimea case or in East Ukraine) is that nothing indicates that Ukrainian Government in these regions has committed massive violations of human rights.

De facto secession.
There is another option on the table for Crimean separatists: the de facto secession.
In order to claim for secession recognition, Crimean separatists will have to convince the international community about the existence of a population located in a specific territory and empowered with a sovereign government. This last element is crucial to pass the “test of effectiveness.”
In light of the above-mentioned principle, it is easy to understand strategy and actions of separatists in Crimea, who methodically since late February 2014 took possession of all public buildings and tried to establish their own authority. To this extent, as allegedly “independent state” after March 16 referendum, Crimea asked for unification with Russia. Crimean separatists have therefore tried to accomplish in twenty days what others (eg Somaliland) could not get in twenty years: a recognition of the effectiveness of their secession.
It is not really the success of secession that is taken into account by law, but rather its “ultimate success”, its ability to succeed and create a seemingly irreversible situation.
Therefore, a secession should be considered successful only if the old regime puts an end to its measures to contest it or cannot succeed in restoring its authority.
If secessionists manage to impose an undeniable effectiveness, third States may decide to recognize the new situation. Nonetheless, this faculty suffers two limitations:

• Firstly, it must not be granted prematurely, that is to say before the establisment of an unquestionable effectiveness – even if the automatic recognition of Kosovo (10) after the proclamation of independence, on 17 February 2008, constitutes an ambiguous precedent in this regard.
• Secondly, and above all, the obligation not to recognize as ‘lawful’ a situation created by a serious breach of a jus cogens obligation. The international community has refused to consider as “states” those entities created with the violation of two peremptory norms of international law. The first one concerns the right to self-determination. In fact, Southern Rhodesia has never been considered a State, nor by United Nations or the international community, despite its undoubted effectiveness.

The second mandatory rule contemplates the prohibition of aggression. The attempt of the “Turkish Republic of Northern Cyprus” (“TRNC”) to establish itself as state in 1983, nine years after the invasion of Cyprus by the Turkish army, ran into the steady Security Council opposition. This last immediately denounced this attempt to secede, considering the proclamation of independence as legally invalid (11).

As a result, the inhabitants of Crimea and the Donbas basin have no right to secession.

The Russian violations
.
By annexing Crimea, Vladimir Putin has violated:

– the fundamental Chart of the United Nations;
– the Statute of the Council of Europe (12);
– two regional treaties regarding peace in Europe;
– two bilateral treaties signed with Ukraine;
– the constitution of Ukraine and Crimea.

A) In primis, it has to be considered that Russia has violated:
– Article 2 paragraph 4 (13) of the UN Charter, establishing three fundamental principles of international law:
Inviolability of borders;
– Respect for the territorial integrity of any State;
– Prohibition of the threat or use of force against other States;

B) The above-mentioned UN Assembly Resolution 2625 of 24 October 1970, which establishes the principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the United Nations Charter (and (applicable to our case):

Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands including mercenaries, for incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.

C) Resolution 3314 (14) of the United Nations dated 14 December 1974 in which the concept of aggression is defined. Specifically, in Article 3 is sanctioned what is worthy considering as an act of aggression relating to presence of Russian troops in Crimea and (their actions) in eastern Ukraine.

The blockade of the ports or coasts of a State by the armed forces of another State;
The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

Furthermore, Russia breaches the Final Act of the Helsinki Conference, signed in 1975, which states:

1 – the respect for the sovereignty of States in the first paragraph;
2 – abstention from the use of force in the second paragraph;
3 – inviolability of borders in the third paragraph;
4 – the right to territorial integrity of States in the fourth paragraph;
5 – the settlement of disputes by peaceful means in the fifth paragraph;

The Final Act (15) comprises measures such as the obligation to notify military maneuvers, but also statements of intent to cooperate in a variety of areas, including freedom of information. By its actions in Crimea and Ukraine, Russia has ignored all parts of the treaty, which was already problematic about its currently application to Ukraine in the following points:

• They consider that their frontiers can be changed, in accordance with international law, by peaceful means and by agreement. They (the states) also have the right to belong or not to belong to international organizations, to be or not to be a party to bilateral or multilateral treaties including the right to be or not to be a party to treaties of alliance; they also have the right to neutrality (16);
• No consideration may be invoked to serve to warrant resort to the threat or use of force in contravention of this principle. Accordingly, the participating States will refrain from any acts constituting a threat of force or direct or indirect use of force against another participating State (17);
• The participating States regard as inviolable all one another’s frontiers as well as the frontiers of all States in Europe and therefore they will refrain now and in the future from assaulting these frontiers. Accordingly, they will also refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating State (18);
• The participating States will likewise refrain from making each other’s territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal (19);

Russia has also violated the terms of the Memorandum of Budapest. In 1994, this agreement was signed by Ukraine, Russia, United States and United Kingdom. Accordingly, Ukraine agreed to dispose of its 1,800 nuclear warheads it had inherited with the collapse of the Soviet Union. In exchange, the signatory States confirmed:
– the commitment to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine;
– that none of their weapons will ever be used against Ukraine except in self-defense in accordance with the UN Charter;
– to refrain from economic pressures, in accordance with the Helsinki Final Act.

Russia also ignores the resolutions of the Council of Europe, which he joined in 1996. The organization has already condemned Russia’s actions (20) twice by means of Resolution 1990 (2014) and Resolution 2034 (2014).
On 28 February 1996, Russia joined the Council of Europe whose statutes are defined by the Treaty of London (21). On two occasions (22), the Parliamentary Assembly of the Council of Europe considered it necessary to suspend the powers of the Russian delegation and its participation in the various bodies of the Assembly (23): “[…] the still unratified credentials of the Russian delegation were challenged on the basis of Rules 8.1 and 8.2 of the Rules of Procedure of the Parliamentary Assembly on the grounds that the role and participation of the Russian Federation in the conflict in eastern Ukraine, as well as its continued illegal annexation of Crimea was in violation of the Statute of the Council of Europe (ETS No. 1) as well as its accession commitments to the Council of Europe, which, in general, brought into question the commitment of the Russian delegation to the principles and membership obligations of the Council of Europe”.
The Assembly reaffirmed (on this occasion) that the illegal annexation of Crimea by the Russian Federation represents a serious violation of the international law, the UN Charter, the Helsinki Final Act and the Statute of the Council of Europe.

Moreover, Russia has violated:

• the Treaty of Minsk of December 1991 signing the dissolution of the Soviet Union and creating the Commonwealth of Independent States, with an explicit commitment to respect the territorial integrity of states (24).
• The above-mentioned Treaty on Friendship, Cooperation and Partnership with Ukraine signed in 1997, enshrining the inviolability of borders for both countries.
• the military agreement signed with Ukraine in 1997, and extended in 2010, regulating the presence of the Russian army in Crimea and the use of bases and facilities.
• Ukrainian Constitution in Articles 73 and 132, as well as the Constitution of the Autonomous Republic of Crimea in Articles 2 and 6. Accordingly, territorial changes must be approved by the whole Ukranian population.

The sanctions countermeasure.

After the attempts to solve the crisis through diplomatic channels (25), the United States, European Union and other Western states have agreed on a gradual sanctions strategy, including restrictions initially facing individuals and entities found guilty of having contributed to the shift of government in the Ukrainian province of Crimea.

• The United States, through the Executive Order no. 13660 of 6 March 2014, whose scope of subjective application was then extended by Executive Order no. 13661 of 17 March 2014 and by Executive Order no. 13662 of March 20, 2014.
• The European Union, through Decision No. 2014/145 / CFSP and Regulation (EU) No. 269/2014 (both of the Council on 17 March 2014); subsequently enforced by execution regulations of the Council: no. 284/2014 of 21 March, no. 433/2014 of 28 April, no. 477/2014 of 12 May 2014.

On 19 March 2015, the European Council agreed to link the duration of the sanctions to the complete implementation of the Minsk agreements, which was foreseen to take place by 31 December 2015.
Since the Minsk agreements were not fully implemented by 31 December 2015, the Council extended the sanctions until 31 July 2016. Having assessed the implementation of the Minsk agreements, the Council decided to renew the sanctions for a further six months, until 31 January 2017.

The economic sanctions prolonged with the decision notably (26):
– limit access to EU primary and secondary capital markets for 5 major Russian majority state-owned financial institutions and their majority-owned subsidiaries established outside of the EU, as well as three major Russian energy and three defence companies;
– impose an export and import ban on trade in arms;
establish an export ban for dual-use goods for military use or military end users in Russia;
– curtail Russian access to certain sensitive technologies and services  that can be used for oil production and exploration.

In addition to these economic sanctions, several EU measures are in place in response to the crisis in Ukraine, including (27):

• targeted individual restrictive measures, namely a visa ban and an asset freeze, currently against 146 people and 37 entities until 15 September 2016 in view of the continuing undermining or threatening of the territorial integrity, sovereignty and independence of Ukraine;
• restrictive measures to EU persons and EU based companies in response to the illegal annexation of Crimea and Sevastopol, limited to the territory of Crimea and Sevastopol, currently in place until 23 June 2017.

The sanctions include prohibitions on:

• imports of products originating in Crimea or Sevastopol into the EU;
• investment in Crimea or Sevastopol, meaning that no Europeans nor EU-based companies can buy real estate or entities in Crimea, finance Crimean companies or supply related services;
• tourism services in Crimea or Sevastopol, in particular, European cruise ships cannot call at ports in the Crimean peninsula, except in case of emergency;
• exports of certain goods and technologies to Crimean companies or for use in Crimea in the transport, telecommunications and energy sectors and related to the prospection, exploration and production of oil, gas and mineral resources. Technical assistance, brokering, construction or engineering services related to infrastructure in these sectors must not be provided either (28).

Conclusions.
In accordance with the analysis, Russia has violated International Law. At the same time, the de facto Crimean secession is intent to get a de jure connotation.
While this last is impossible at the moment, the Kosovo case appears to constitute the key element in order to strengthen the remedial secession theory. Considering that the ICJ has not stated against the beginning of the diuturnitas in this sense, the geopolitical circumstances (eg. energy provisions) could play a decisive role in this game making possible the construction of the related opinion juris.
This could give a (very low) chance to Russia to see its violations turning into “something else”.
All the same, it is noteworthy to remember that the premises of the Crimea secession are different from that ones of the Kosovo (as explained above), and the assimilation will remain difficult anyway.

Bibliography:
Alejandro Pastori, La anexión de Crimea y el derecho internacional, in Coloquios, Revista electrónica del Congreso Judío Latinoamericano, Edición 27, 10 August 2015.
Andrew D. Sorokowski, Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation, in Vol. 20, UKRAINE IN THE WORLD, Harvard Ukrainian Studies, 1996, pp. 319-329.
Anna Dolya, L’annexion de la Crimée : leçons pour la sécurité européenne, in Fondation Robert Schuman, 22 February 2016.
Antonello Tancredi, Crisi in Crimea, referendum ed autodeterminazione dei popoli, in Sidi-isil, May 2014.
Emanuele Cimiotta, Le reazioni alla ‘sottrazione’ della Crimea all’Ucraina. Quali garanzie del diritto internazionale di fronte a gravi illeciti imputati a grandi potenze?, in Sidi-isil.org, August 2014.
J.D. Giuliani, Russia, Ukraine and International Law, European issues n°344, 17 February 2015.
Jean-Dominique Giuliani, La Russie, l’Ukraine et le droit international, in Fondation Robert Schuman, 16/02/2015
José Ignacio Torreblanca, Las diez violaciones del derecho internacional que Rusia perpetra en Ucrania, in El Pais, 18/02/2015
Kingston Reif, Ukraine, Nuclear Weapons, and Security Assurances At a Glance, in Arms Control Association, March 2014
Kingston Reif, Ukraine, Nuclear Weapons, and Security Assurances At a Glance, in Arms Control Association, March 2014
Marco Villa, Il diritto internazionale, il referendum in Crimea e il precedente del Kosovo, in Ispi, 10 March 2015.
Richard F. Kaufman and John P.Hardt, The Former Soviet Union in Transition, in Joint Economic Committee of the United States, 1993.
Sherin Seyda, The Legal Status of the Kurdistan Region of Northern Iraq under International Law and Its Implications for the Concept of International Legal Personality, 07/2015
Théodore CHRISTAKIS, Les conflits de sécession en Crimée et dans l’est de l’Ukraine et le droit international, in Journal du droit international (Clunet) n° 3, July 2014.

Websites:
http://conventions.coe.int/Treaty/fr/treaties/Word/001.doc
http://hrlibrary.umn.edu/instree/GAres3314.html
http://www.consilium.europa.eu/en/press/press-releases/2016/03/04-ukraine-state-funds/
http://www.consilium.europa.eu/en/press/press-releases/2016/06/17-annexation-crimea-sevastopol-eu-extends-sanctions/
http://www.consilium.europa.eu/en/press/press-releases/2016/07/01-russia-sanctions/
http://www.osce.org/helsinki-final-act?download=true
http://www.refworld.org/docid/3b00f16528.html.
http://www.un.org/en/sections/un-charter/chapter-i/
http://www.unoosa.org/pdf/gares/ARES_25_2625E.pdf

Notes:
1 – The Crimean peninsula (2 million inhabitants with an area of 27,000 km²) has always had its own national and cultural features, with different ethnic and religious identities among its inhabitants.
2 – It is noteworthy to mention that was only following numerous deportations of individuals living in Crimea that Russians have become the peninsula’s ethnic majority. From 1944, the totalitarian regime of the Soviet Union deported Tatars, Gypsies, Armenians, Bulgarians, Greeks, and Italians. At the end of Second World War, the Crimean peninsula had lost two thirds of its population.
3 – By this quibble, Khrushchev decided to offer the Crimean peninsula to Ukraine all by himself.
4 –  Crimea has not been the only region to suffer a similar fate in the USSR. Transnistria – a historically Ukrainian region – was transferred to the Soviet Socialist Republic of Moldova; Nagorno-Karabakh – a historically Armenian region – joined the Azerbaijan Soviet Socialist Republic; South Ossetia and Abkhazia became part of the Georgian Soviet Socialist Republic. To know more see also Richard F. Kaufman and John P.Hardt, The Former Soviet Union in Transition, in Joint Economic Committee of the United States, 1993.
5 – The lower house of the Russian Parliament.
6 – See also Andrew D. Sorokowski, Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation, in Vol. 20, UKRAINE IN THE WORLD, Harvard Ukrainian Studies, 1996, pp. 319-329.
7 – Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations. See http://www.unoosa.org/pdf/gares/ARES_25_2625E.pdf
8 – See also Sherin Seyda, The Legal Status of the Kurdistan Region of Northern Iraq under International Law and Its Implications for the Concept of International Legal Personality, 07/2015.
9 – Ibi.
10 – On 22 July 2010 the International Court of Justice stated that “the declaration of independence did not violate resolution 1244 (1999) of the Security Council” and that “the declaration of independence did not violate the constitutional framework” of the moment.
In that scenario NATO decided to intervene without Security Council authorization because there was ongoing an overwhelming humanitarian catastrophe.
11 – http://www.refworld.org/docid/3b00f16528.html.
12 –  Of which Russia is member.
13 –  “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” http://www.un.org/en/sections/un-charter/chapter-i/;
14 – To see the Resolution: http://hrlibrary.umn.edu/instree/GAres3314.html;
15 – Of the Organization for Security and Co-operation in Europe (OSCE).
16 –  http://www.osce.org/helsinki-final-act?download=true at pag 4.
17 – Ibidem.
18 – http://www.osce.org/helsinki-final-act?download=true at pag 5.
19 – Ibidem.
20 – Violating the Statute of the Council.
21 – http://conventions.coe.int/Treaty/fr/treaties/Word/001.doc;
22 – Most recently on January 26, 2015.
23 – http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-fr.asp?fileid=21538&lang=fr;
24 – See also Kingston Reif, Ukraine, Nuclear Weapons, and Security Assurances At a Glance, in Arms Control Association, March 2014;
25  – In addition to the blockade put in place by Russia in the Security Council to a project of resolution, on 15 March 2014.
26 – http://www.consilium.europa.eu/en/press/press-releases/2016/07/01-russia-sanctions/;
27 – http://www.consilium.europa.eu/en/press/press-releases/2016/03/04-ukraine-state-funds/;
28 – http://www.consilium.europa.eu/en/press/press-releases/2016/06/17-annexation-crimea-sevastopol-eu-extends-sanctions/;