By A. Svetlov
I would like to take a look at the factual and legal aspects of Russia´s aggression against Ukraine´s territorial integrity in early 2014. Indeed, to what extent has the international law been violated and what are the consequences?
In February 2014 Russian authorities used the internal political conflict in Ukraine to deprive the Ukrainian state of its control over Crimea by attacking the Crimean Parliament and blocking the peninsula’s infrastructure as well as power ministries´ units with “unidentifiable” “green men”, which later turned out to be Russian military and security forces. Further, a fake, internationally condemned, referendum with rigged results was held in order to give the affair a flair of justice, and to absorb Crimea with apparently legal means.
The Constituent Act of the Community of Independent States of 1991 set out the principles of respect of the existing borders, with Russia relinquishing any challenge to them. In 1997 the Treaty on Friendship, Cooperation and Partnership, and the Black Sea Fleet Status of Forces Agreement, prolonged until 2042 in 2010 by the so-called Kharkiv Accords, were concluded between Russia and Ukraine, reaffirming again the inviolability of the borders between both states.
Kremlin claims the legality of its actions under two concepts of international law: the protection of nationals abroad (Articles 2(4) and 51 UN Charta) and intervention upon invitation. Both, upon consideration, don’t find factual support for referring to. Rhetorical claims of Putin have no legal value and can not supplement existing case law and international practice.
General Assembly Resolution A/RES/68/262 of 27.3.2014, adopted with 100 votes,
58 abstentions, and 11 No-votes, has called upon states not to recognize any alteration to the status of Crimea and the city of Sevastopol. Russia violated the following United Nations Charter provisions:
– Article 1.1: UN´s purpose is to maintain international peace and security.
– Article 2.3: All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
– The use of force is prohibited (Article 2.4), as is intervening in another state’s domestic affairs and territory (Article 2.7).
– Armed intervention is only justified when mandated by the UN Security Council under Chapter VII or in case of self-defence.
The EU´s reactions include diplomatic sanctions adopted by the EU (the unilateral suspension of visa facilitation talks, negotiations on the New Agreement, and the EU-Russia Summit); level 2 restrictive measures based on Article 29 TEU (CFSP Decision) + Article 215 TFEU (Regulation); and level 3 economic sanctions (e.g. arms, oil, gas and other trade embargoes).
The Organization for Economic Cooperation and Development (OECD) suspended the accession process of Russia and began strengthening ties with Ukraine. The OSCE Parliamentary Assembly has accused Russia of the breach of the basic principles laid down in 1975 Helsinki Final Act, 1990 Charter of Paris for a New Europe, and condemned Russian actions in Ukraine in 2014 “Baku Declaration” and in 2015 “Helsinki Declaration”.
The Parliamentary Assembly of the Council of Europe (PACE), declaring that Russia’s annexation of Crimea was “in clear contradiction with the Statute of the Council of Europe” and the commitments Russia made, when it joined the organisation in 1996, has decided to suspend the voting rights of the Russian delegation, as well as its right to be represented in the Assembly’s leading bodies, and its right to participate in election observation missions. In its resolution, adopted by 145 votes in favour, 21 against and 22 abstentions, the PACE Assembly stated that the military occupation of Ukrainian territory, threat of military force, recognition of the illegal referendum and annexation of Crimea “constitute, beyond any doubt, a grave violation of international law”.
Ukraine pursues many courses of action. Thus it has filed a claim at the European Court of Human Rights in Strasbourg, but the options beyond this are limited, lawyers agree. Russia does not recognise the jurisdiction of the International Court of Justice, while its position as a Permanent Member of the UN Security Council means little chance of formal UN sanctions given its possession of the veto. Ukraine intensified its cooperation with partner states, EU, NATO, Visegrad, etc. thus adopting a clear European course and building a significant coalition of states.
This case raises structural questions regarding the development of international law. If the conflict is not solved promptly, it may serve as a precedence and justification for further violation of legal practice, bringing uncertainty, potential chaos and unenforceability into any international agreement.
Calls for reforms in the UN Security Council composition, procedures and competences intensify since 2014, and if not attended to, may lead to further de-legitimisation of the UNO.
Besides, we witness qualitative and quantitative proliferation and legalization of the “hybrid war” methods, by military masking the uniforms or mercenaries, but also through manipulation, propaganda and fakes, with growing significance of populistic rhetoric for legitimizing the breach of legal norms, irrespective of factual background and international law.
Russia´s actions have a transformatory influence on international politics and institutions, since giving up or non-proliferation of the nuclear weapons in return for guarantees has lost its credibility.
Given the usual lack of legal remedies in international relations, the value of international commitments fell sharply. This fall is exacerbated by unwillingness of the guarantor states, EU, NATO, UNO, OSCE and other entities to address the conflict in a serious manner in order to provide for effective remedies for law and treaty enforcement, de-occupation and de-escalation of aggression.
By annexing Crimea Russia raised fundamental questions about the principles of world order. For Russia itself the annexation is a watershed event, which dramatically intensifies the internal political and economic burdens, that Russia’s authoritarian regime is faced with. In the long run, many scholars predict disintegration of the Russian Federation territory into more cohesive legal entities in accordance with economic, socio-cultural, ethnic and historical legacies, all according to the “principles” Russia itself set in motion in 2014.
Eva Saeva is PhD Candidate in Law at Newcastle University. Her research concentrates on the EU’s legal approach to cybersecurity.