The Ukraine conflict and international law
Yannik Sprecher
In March 2014, Moscow admitted Crimea to the Russian Federation, shortly after the peninsula had declared independence, having been occupied by Russian troops. Does this annexation contravene international law? In what ways can Crimea and eastern Ukraine exercise their right to self-determination? And what role did Russia play?
“Yes, the annexation of Crimea constitutes a violation of international law.” That is the answer to the fundamental question, according to Denise Brühl- Moser, a specialist in international law at the University of Basel. Not only were democratic principles such as the prohibition on the use of force and freedom of expression and the media violated during the Crimean referendum, but Crimea’s declaration of independence a week earlier had no legal validity. The government in Simferopol therefore lacked the authority under international law to join Russia.
“The right to self-determination does not equate to a generalized right of secession,” Brühl-Moser explains. Except in cases of decolonization or liberation from a racist regime, there is no provision in international law for population groups to break away from the states of which they form part.
Alleged analogy with Kosovo
The possibility of “remedial secession”, if a state is guilty of serious human rights abuses against a section of its population, is discussed and widely supported in international jurisprudence. However, this exception is subject to strict criteria. As an emergency measure, secession must be the last resort, in order to escape intolerable circumstances.
In 2008, Kosovo was able to use this mechanism to separate from Serbia, in response to the suppression and persecution of the Albanian minority by Slobodan Miloševićs’s regime and the ensuing war. Kosovo’s secession remains contested today, as it is not accepted by all UN member states and its legitimacy has been recognized only indirectly by the International Court of Justice.
“One of the interesting things about the Ukraine case is that both sides argued on the basis of international law,” Brühl-Moser observes. In 1999, Russia had voted against a UN resolution authorizing military intervention in Yugoslavia, in contravention of the international community’s responsibility to protect under international law, yet in the case of Crimea the Kremlin deployed similar arguments. By systematically spreading misinformation about ethnically motivated violence against the Russianspeaking population, it now wanted itself to make the case for a remedial secession. Although a UN report noted isolated instances of violent attacks, the grossly exaggerated reports in the Russian media did not reflect the reality, which fell far short of justifying a “remedial secession”.
One of the interesting things about the Ukraine case is that both sides argued on the basis of international law.
Dr. Denise Brühl-Moser
The Ukrainian government, for its part, appealed to its right of self-defense against invaders. The identity of the unbadged troops in Crimea, known as “green men” did not remain a secret for long – they were Russian GRU special forces. This meant that Russia was contravening the UN prohibition on the use of force and violating the territorial integrity of Ukraine.
Example of the Jura conflict
Calls for self-determination do not have to lead to a change in sovereignty. This is shown by the example of Jura‘s secession from the canton of Bern, which took place within the boundaries of a state. However, here the process took far longer. Back in the early 1950s, the separatist “Rassemblement jurassien” made the first legal moves to establish the canton of Jura. After initial resistance, the conflict was defused only by the adoption in 1970 of an amendment to the Bernese constitution, recognizing the right to self-determination of the French-speaking parts of the population. The seven districts of the canton making up the Jura were able to vote on their own status in a series of referendums. In 1978, the creation of a new canton of Jura was democratically approved by a majority of the Swiss people and all the cantons.
“By contrast with this democratic process, the referendum in Crimea was a farce,” Denise Brühl- Moser says. Any measures to detach Crimea from Ukraine and annex it to Russia are contrary to both the Ukrainian and the Crimean constitutions.
The plebiscite also contravened the rules set out in the European conventions on human rights stipulating a universal, free, equal, and secret ballot, held within a context of freedom of expression and the press, and subject to international monitoring. Questions remain as to the real views of the population. Although the results of the referendum were very clear, there are still considerable doubts about their reliability.
No easy solution in sight
Denise Brühl-Moser sees Crimea’s geopolitical importance as the reason behind these attempts to bring about its secession. Not only does the region have rich oil and gas reserves, it is the main base for Russia’s Black Sea fleet, giving it access to the Black Sea and the eastern Mediterranean. “The Russian Federation has no interest in annexing eastern Ukraine, on the other hand, if only because of the economic situation there.”
What is the way forward for Ukraine? “The solution is probably to look at decentralizing power to some extent, having regard to the provisions for protection of minorities in international law,” Brühl-Moser explains. “Ideally, self-determination should be exercised within existing states.”
As with Jura, the only legally tenable way for Crimea and eastern Ukraine to achieve self-determination would be via a lengthy political process, with no predetermined outcome. This is the case not least because the government in Kiev is vehemently opposed to federalization, as it fears that Russia might use its clandestine presence in eastern Ukraine to influence domestic Ukrainian politics. Brühl-Moser argues that ultimately the Ukraine conflict is about defending the values of an international order that was designed to keep the peace and agreed by the international community after World War II.
This article was published in UNI NOVA 126 (November 2015).
Denise Brühl-Moser is an associate professor in Public, International, and European Law at the University of Basel. She focused on the right of peoples to selfdetermination in her doctoral dissertation and has since held many seminars on the topic. During five years in Canada, she was able to make an indepth study of the case of Québec. She has spent the last three years in Tashkent, Uzbekistan, where she has been able to see Russia‘s influence on this former Soviet republic at work first-hand.