The United Nations Security Council was created with the intention to maintain international peace and uphold the integrity of the sovereign nations it defends. Ironically, Russia, one of the five members of the Security Council, violated the sovereignty of Ukraine, as well as other core aspects of international law when it annexed the Crimean Peninsula.
The United Nations Security Council was created with the intention to maintain international peace and uphold the integrity of the sovereign nations it defends. Ironically, Russia, one of the five members of the Security Council, violated the sovereignty of Ukraine, as well as other core aspects of international law when it annexed the Crimean Peninsula. In a move similar to the power ploys of the Cold War era, Russian troops infiltrated the Peninsula and effectively isolated Crimea from the Ukrainian government when the nation’s pro-Russian president was ousted from power. After, a referendum was offered where the residents of Crimea could choose to join Russia or revert to a more autonomous region under the 1992 Ukrainian constitution. Controversially, an option to keep the status quo was not offered; likewise, several ethnic and religious minorities such as the Crimean Tatars chose to boycott the election. Despite the questionable legality of the referendum, 97% of Crimean residents who participated voted in favor of the union between Russia, which resulted in Crimea becoming a de facto part of Russia despite international backlash against the annexation. Russia pursued a realist foreign policy stance when annexing Crimea as it viewed the long-term gain of strategic territory as more important to its self-interest than maintaining the balance of power by fulfilling international law obligations.
Part I: Related Treaties
Russia violated the protections a sovereign nation has by annexing Crimea, despite several codified treaties and clearly practiced customary law. The principle of not violating a state’s sovereignty is an inherent practice for centuries; thus, it is a matter of jus cogens. Therefore, out of customary law, Russia is obligated to remain within its own boundaries and this principle is codified into a written treaty as Article 2(4) of the UN Charter states “prohibits the threat or use of force and calls on all Members to respect the sovereignty, territorial integrity and political independence of other States,” (Purpose). Likewise, the conduct expected after signing the UN Charter is based off of opinio juris. For example, in the ICJ case of Nicaragua v USA, their decision was based on the consistent customary absence of force after the UN Charter was signed (Dixon 37). Along with years of customary law, the ICJ’s decision affirms that a state’s sovereignty is the most important, and the use of force can only be applied in extreme cases, such as self-defense or decolonization. With this, Article 2(4) of the UN Charter against the use of force goes into effect, which makes it a protocol that must be adhered to. The Russian government deviated from the obligations set from international standards through custom, international courts and signed treaties when it threatened the sovereignty of Ukraine.
With the 1994 Budapest Memorandum, 1997 Treaty of Friendship, Cooperation and Partnership, and the Black Sea Fleet Status of Forces Agreement (SOFA), Ukraine and Russia both committed to respecting the territorial sovereignty of each nation. SOFA restricts Russian military operations in Ukraine and forbids an open Russian military presence in Ukrainian territory. A clear issue with the treaty design is that the Russian Duma, or parliament, voted to nullify the 1997 Black-Sea Fleet agreement and faced no legal consequences despite breaking the contract 37 years earlier than intended. Despite years of the treaty being ratified and enacted into force, Russia was able to make the SOFA non-binding without the consent of the Ukrainian government in a domestic decision (“Russian Duma”). The research design of SOFA is flawed, as there is no enforcement mechanism regarding a violation from Russia, even though it is the more powerful of the two nations. The bilateral treaty is based on each state monitoring each other; however, in this case, Russia openly chose to go against SOFA without any written punishment from Ukraine. This nullification violates a codified customary law in the Vienna Convention as Article 27 specifies that national law cannot be invoked to withdraw from a treaty obligation, thereby prioritizing the incorporation of international law (Dixon 68). Even less committal than the signed treaties, the 1994 Budapest Memorandum is not a formal treaty; instead, it is a diplomatic document signed affirming the Helsinki Final Act (“Budapest Memorandum”). The Budapest Memorandum signified that the United States, Britain and Russia would recognize and help protect Ukrainian sovereignty in exchange for the Ukrainian government giving up its nuclear arsenal. Although binding through uniform practice from all the signed parties, the Budapest Memorandum has no enforcement mechanism for violators who dispute Ukrainian sovereignty. Thus, the commitment is viewed as undefined because of the more informal nature of the Memorandum, and can be perceived as holding less weight.
Part II: The Legality of the Crimean Referendum
While secession of a region is permitted, the circumstances it is legally allowed under were not fulfilled through the Crimean claim to self-determination. From a national standpoint, the referendum of Crimea violated Ukrainian law as their constitution states that all legislation must be in accordance with the entire nation, not just autonomous states. Internationally, the legality is more vague as the UN General Assembly Resolution 1514 states that “a right to unilateral secession can be defined as a right of a minority-people to separate a part of the territory of the parent State on the basis of that people’s right to self-determination” (Purpose). However, the International Court of Justice in its Kosovo Advisory Opinion did not set a precedent on the judicial practice for legally seceding (“International Law”). The UN has determined conditions such as “it shall be envisaged by the national legislation of the parent state concerned” or that “their parent state shall flagrantly violate their human rights” (Purpose). In the case of Crimea, neither condition is fulfilled as the referendum explicitly violated the constitution and very few cases of human rights were discovered against Crimean residents or minorities within (“International Law”). In the Friendly Relations Declaration (381 Marxsen), the right to self-determination guarantees minority rights and levels of autonomy, but limits the idea of secession unless there is a complete disparity of that group’s treatment. In Ukraine, however, the Crimean Peninsula already enjoyed a more autonomous status. The right to self-determination is generally undermined by the concepts of national unity and territorial integrity – two core aspects of the UN Charter to support its member states; this stance goes against the actions of Russia to condone the referendum.
While international law is vague in regards to self-determination, violations of customary law are clearly prohibited. In the Kosovo Advisory Opinion, the ICJ stated “unilateral declaration of independence will be recognized as illegal where a violation of jus cogens principles took place” (“International Law”). Russia violated Article 2(4) of the UN Charter by threatening and displaying force, as a result, it broke a clearly agreed upon international norm. Member states opted to not recognize Crimea due to this violation of international law; however, as it was assimilated a day later to Russia, the importance of recognition was devalued as the sovereignty was simply transferred to Russia (Abraham). While the international community still considers Crimea to legally be a part of Ukraine by refusing recognition, de facto it is now assimilated into Russian territory.
Part III: Role of IGO’s and Outside Actors
The lack of tangible power from the United Nations, in regards to powerful states, is apparent from the minimal response to Russia after several international law violations. The United Nations General Assembly attempted passing a resolution that reaffirmed Ukrainian sovereignty and would have invalidated the union between Crimea and Ukraine. However, due to Russia’s veto power as a member of the Security Council, the resolution did not pass and there was no binding international law or punishment as a result. While the largest international body was unable to enforce the provisions of its Charter, Russia faced sanctions from other inter-governmental organizations. First, IGO’s such as the IMF and EU have acted to bolster the Ukrainian economy to counteract Russia’s seizure of economically viable land. The IMF approved a loan for $17 billion to Ukraine and the European Union has pledged millions of dollars with the intention of Ukraine ending gas subsidies to Russia (“Ukraine Crisis”). Member states and organizations are working towards rebuilding the strength of Ukraine and decreasing its dependence on Russia as a consequence of the Crimean annexation.
Intergovernmental organizations are now working to re-establish a balance of power and punish Russia through economic and military tactics. Economically, the European Union and the United States have frozen assets and set sanctions on key financial sectors and individuals in Russia. Some Russian banks have also been blocked from accessing European and American markets; these measures have resulted in a slowdown of Russian growth as reported by their first quarter returns of 2014 (369 Marxsen). Likewise, the United States has pledged a one billion dollar aid package that is focused on assisting Ukraine’s energy sector to make it stronger without Russian intervention. Militarily, the United States has increased NATO’s air presence and deployed hundreds of soldiers around countries neighboring Russia like Poland, Latvia and Estonia. NATO has also strengthened ties to Ukraine with the Partnership for Peace Program and has guaranteed military aid despite Ukraine not being a member (Christie). While the UN was unable to act due to the concentration of power Russia has, other states and IGO’s have acted against Russia’s unlawful behavior through unilateral sanctions and bolstering the Ukrainian government.
Part IV: Deconstructing the Russian Argument
The Russian government’s stance is that it acted out of self-defense for ethnic Russians and intervened legally in Crimea. In Article 51 of the United Nations Charter, self-defense is one of the two exceptions for the use of force; however, protecting Russian nationals in a different nation does not qualify as self-defense as Russia does not have jurisdiction within Ukrainian territory. Also, there is no customary law regarding the protection of nationals abroad so there is no uniform consensus or opinio juris (373 Marxsen). For Russia to have jurisdiction to intervene, the Ukrainian parliament would have had to give special permission, which it did not. Based on Article 51, Russia’s right to self-defense is only applicable in situations where “an armed attack occurs against a Member of the United Nations” (Art. 51 CUN) i.e. if Russia itself is attacked. The Russian argument is centered on human rights violations; however, monitors from the Organization for Security and Cooperation for Europe (OSCE) were banned from entering Crimea to determine if this claim was factual (“Russian forces”). The presence of human rights violations was tenuous at best, and the lack of jurisdiction all indicates that Russia knowingly breached international law.
Russia also argues that it did not unlawfully use force as it responded to a request for military assistance by the then Ukrainian president, Victor Yanokovych. The first issue with this justification is that Yanokovych had been voted out of office a month before the conflicts began, thus unable to request military aid. However, Russia maintained that the only legal government in Ukraine was the one under Yanokovych and refused to consider his impeachment as legal. More importantly, Yanokovych self-abdicated his post meaning he held no say in matters of Ukrainian sovereignty after he fled. However, even if he was still legally president, de facto he had no control over the Ukrainian government and was not perceived as the head of state by his own citizens. Even if Yanokovych was able to invite Russia into Ukrainian jurisdiction, he lacked the power as inviting a foreign military would require the formal approval of parliament (Marxsen 388). Russia’s claims of being invited into the Crimean Peninsula have no validity as Yanokovych was not the active head of Ukraine, and even if he was, he did not have the authority to do so.
Russia’s core argument is that Crimeans voted in an overwhelming majority to secede from Ukraine, thus there was no violation of international law. However, as determined by the ICJ in the Lotus Case, it is a fundamental rule of jurisdiction that the state has absolute power and authority over all of its citizens (149 Dixon). With this standard, the Ukrainian constitution is the supreme law of the land, and the decision to hold a Crimean-specific referendum violates Ukrainian legislation. In Ukraine, referendums are considered legitimate only at the national level, not regional. Likewise, the conditions of the referendum are also questionable, as Russia had already gained de facto control of Crimea and created a non-neutral environment. According to Article 25 of the International Covenant on Civil and Political Rights, the principles of a fair election are freedom, secrecy, equality and universality (381 Marxsen). As the freedom of the Crimean election was compromised as the Russian military had taken control of public infrastructure and the local government, the validity of the election results is questionable.
Part V: Issues of Non-Compliance
With the abdication of a pro-Russian president and a deepening of alliances with the West, Russia was losing its upper hand with Ukraine. With the annexation of Crimea, Russia is geographically a greater threat now as it borders Ukraine on three fronts. Militarily, control of Crimea strengthens Russia’s access to the naval base in Sevastopol, the location of its Black Sea Fleet. Despite signing clearly stated treaties like the UN Charter, Russia chose to not comply because of the strong incentive of gaining full access to Sevastopol. B gaining access to a strategically located base, Russia has extended its capabilities towards the Mediterranean, Atlantic Ocean and Indian Ocean (Daly) and strengthened its military presence. Previously, Russia was limited in its size and technology of ships because of the 1997 Black Sea Fleet Treaty; once it annexed Crimea and withdrew from the agreement, it has already been able to increase the size of its fleet and bolster its missile and air defense capabilities. Out of Ukraine’s lack of capacity to address the violation of the Black Sea Fleet Treaty and the international community’s reluctance to militarily challenge Russia, Russia has successfully not complied and furthered its self-interest.
By control of Crimea, Russia deliberately gained access to the Crimean oil reserves to further its economic shoreline. According to the New York Times, Russia gained 230 miles of underwater and coastal territory once it annexed Crimea, a move that alienates Ukraine from the potential resources of the Black Sea. This gain of coastline is a result of the 1982 Land of the Sea Treaty that allows nations to have exclusive economic zones (EEZs) where they can exploit deep-sea resources. This depletion of Ukrainian resources could strategically be a result of Ukraine choosing an Exxon team to tap into the Black Sea in 2013 over the Russian company, Lukoil. As Ukraine began leaning towards pro-Western investment, Russia realized the value of Ukraine’s energy dependence resulting in the Russian government trying to monopolize the oil and natural gas sector by gaining Crimea (Broad). Along with geographic expansion of sovereignty through the law of the sea, Russia also gains improved energy infrastructure from Crimea. Initially, Russia would have had to develop much more expensive pipeline around Crimea; however, with the seizure of land, Russia can gain a more direct intake of oil. The economic value of increasing its energy sector, the territorial gain from the additional shoreline, and potential growth of international power all served as factors for the annexation of Crimea.
The substantial gains to Russia should be a source of alarm in the international community as the newly issued coastline now borders the territory of Georgia, Turkey, Bulgaria and Romania (Broad). Yet, Russia’s position is too prominent to engage in open conflict despite the current imbalance of power from the annexation. Russia chose to engage in non-compliance due to the military, political and economic gains it received from violating codified treaty to gain unfettered access to the Black Sea.
Part VI: Conclusion
As there is no supranational organization monitoring or punishing states, Russia acted in defiance against customary and codified law with the assumption that other nations would not rise militarily to challenge its claim on the Crimean Peninsula – an assumption that has been confirmed as other nations have only used diplomatic or economic sanctions. The annexation of Crimea has highlighted a weakness within the United Nations-countries that hold Security Council power can choose to not comply with treaties reinforced by jus cogens and face minimal international consequences. As Russian troops had infiltrated Ukraine and violated its sovereignty, the legality of the Crimean referendum is void. Russia knowingly infringed on the jurisdiction of the Ukrainian government and disregarded its fundamental right to absolute rule over its citizens. While the international community has condemned Russia and refused to accept the annexation de jure, this scarcely matters, as Crimea will remain a part of Russia de facto in the long run. Ultimately, this incident sets a precedent to other Security Council Members that choosing state interests over customary law will result in a larger payoff, and that international law is something that should only be followed when it works in that state’s own favor.