In his famous New York Times opinion piece last year, Russian President Vladimir Putin described rather elegantly the foreign policy of a nation that respects the international law prohibition on the use of force. In the context of the United States’ imminent military intervention in Syria, he claimed:
‘We are not protecting the Syrian government, but international law. We need to use the United Nations Security Council and believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not. Under current international law, force is permitted only in self-defense or by the decision of the Security Council. Anything else is unacceptable under the United Nations Charter and would constitute an act of aggression.’
Evidence of Russia’s adherence to this policy is virtually non-existent. In 2008, Russian forces responded swiftly to counter the deployment of Georgian armed forces in South Ossetia (part of Georgia’s own territory), leading to a complex armed conflict among Russia, Georgia, South Ossetia and Abkhazia. Ultimately, Georgia lost control of both South Ossetia and Abkhazia. Their declarations of independence were recognised by a mere handful of states, including Russia. The illegitimacy of Russia’s use of force in this context was blatant.
If history is anything to go by, Russia’s violation of Ukraine’s territorial integrity today is equally (if not more) troubling. Yet, the West’s condemnation of Russia’s use of force in the 2008 Caucasus conflict was considerably more effective than it is with respect to Ukraine today. First, as a practical matter, there are concerns that the United States’ sanctions against Russia (though necessary to display disapproval of the latter’s occupation of Crimea) may prove ineffective in pressurising President Putin to withdraw from the region, even with the participation of the European Union (EU).
More importantly, however, the case against Russia is weakened by the fact that it has made no claim whatsoever to the territory of Crimea. Instead, the issue in dispute is the question of the lawfulness of Crimea’s proposed secession from Ukraine. The intention of Crimea’s legislature not to constitute an independent state but to join the Russian Federation seems to preclude the ability of third states to delegitimize its secession. If the proposed referendum on March 16th supports this desire to integrate with Russia, third states’ rejection of this questionable exercise of the popular will (owing to Russia’s ominous presence) will have little practical effect. Their refusal to recognise Crimean secession cannot be manifested in a widespread lack of recognition as was possible in South Ossetia and Abkhazia. Crimea would simply become part of an eagerly awaiting Russia, and Ukraine would be helpless to reverse it. At best, as Eric Posner suggests, Ukraine can make a case for the illegitimacy of secession effected through Russian involvement, in violation of Ukraine’s sovereignty. But who would listen?
The Crimea problem reminds us of the events leading up to Kosovo’s independence from Serbia in 2008. Despite Serbia’s continued assertion of sovereignty over the territory of Kosovo, Kosovo’s secession was successfully executed. The International Court of Justice (ICJ) in its advisory opinion effectively endorsed Kosovo’s declaration of independence, recognising its authors as representatives of the people. Most recently, Crimean Parliament has adopted a declaration of independence drawing international attention to ‘the confirmation of the status of Kosovo by the United Nations International Court of Justice’. In stark contrast with Russia’s rejection of Kosovo’s independence in 2008, President Putin himself has compared the situation in Crimea to Kosovo, emphasising the right of the Crimean people to ‘determine their own future’.
Using Kosovo’s independence to justify Crimea’s proposed secession is not all that easy. First, the horrific violence that characterised the conflict in Kosovo is absent in Crimea, precluding a claim to remedial secession. The unique circumstances of Kosovo’s independence have repeatedly been emphasised to ensure that its remedial secession label created no precedent for a more general right to secede in international law. The ICJ affirmed this, strategically evading the question of whether the Kosovars could legitimately secede as a manifestation of their right to self-determination. The Supreme Court of Canada in its advisory opinion on the secession of Quebec also adopted a conservative construction of external self-determination as a right exercisable under limited conditions only. Secondly, and more importantly, the right to self-determination – if recognised – in no way justifies Crimea’s occupation by a foreign state. Recognising these differences, Robert McCorquodale argues that a claim to self-determination in the present circumstances is foreclosed, preventing any ‘international legal effect’ out of a declaration of independence.
What is unfortunate for Ukraine and its supporters in the West is the fact that, despite the absence of a legitimate claim by Crimea to this narrow construction of self-determination, the situation is likely to turn on the principle of effectiveness. Simply stated, if Crimea effectively secedes from Ukraine, there is little anyone can do about it. The current state of international law would support this result; it neither regulates declarations of independence nor prohibits secession. Effectiveness comprises two requirements: control of territory, and a degree of international recognition. The former is satisfied by Crimea’s enduring links to Russia (having joined Ukraine only as recently as 1954) and its subsequent status as an autonomous republic of Ukraine. As I have already argued, the second requirement is avoided altogether, owing to the ease with which the province would be incorporated into Russia following the referendum at the end of the week.
Once this happens, even if we conclude that Russia has indeed used force in its occupation of Crimea, it seems naive to believe that Ukrainian forces could successfully repel its military presence in Crimea. On the contrary, any use of force by Ukraine – much like the use of force by Georgia in 2008 – would at this point simply justify a counter attack by Russia, whose strongest justification is at present an unconvincing claim to consent from former Ukrainian President Viktor Yanukovych and the Black Sea Fleet Agreement. Ultimately, and tragically for international law, the unquestionable illegality of Russia’s use of force in violating Ukraine’s territorial integrity will be entirely irrelevant to the effectiveness of Crimea’s secession from Ukraine.
The accuracy of this account of Crimea’s proposed secession will undoubtedly be tested as events unfold at the end of the week.