Opponents of Crimea’s annexation to Russia have cited international law, which would be violated by such a secession. His supporters too. No wonder: international law is probably not of much help in this type of situation.
Yann Kerbrat is professor of public law at Aix-Marseille University where he is deputy director of the Center for International and Community Studies and Research (UMR DICE 7318). He is the author of articles and works on public international law, including, with Pierre-Marie Dupuy, the Summary of public international law published by Dalloz (11e ed., 2012).
The Life of Ideas: Does international law provide a legal basis for the demands of Crimean separatists? ?
Yann Kerbrat: On the side of those in favor of the annexation of Crimea to the Russian Federation, it is, as always, the right of peoples to self-determination which is brandished as the standard of secessionist demands. The people of Crimea allegedly have a right to external self-determination which they derive directly from the international legal order and which they would have exercised through the referendum, then through the conclusion of a treaty of attachment with Russia. This assertion is undoubtedly politically clever but it is questionable, not to say erroneous, from a legal perspective.
Considered in its external dimension, that is to say as the right to secession, the right of peoples was constructed in close relation with decolonization. It was not designed as an instrument of destabilization of the State for the benefit of any people or any minority that claims independence. Shaped by several successive resolutions of the General Assembly of the United Nations, it was indisputably established only for subject peoples. to foreign subjugation, domination and exploitation » (resolution 1514 of December 14, 1960) ; that is, for peoples under colonial domination. Its scope expanded slightly over the decades of the 1970s and 1980s to gradually include the populations of territories placed under foreign occupation, as well as to enable the independence of peoples victims of apartheid. ; however, it has never expanded to the point of benefiting any minority desiring independence. Crimea, integrated into Ukraine at a time when the latter was a Soviet republic, is not in any situation covered by the right to external self-determination. We can undoubtedly deplore violations of certain rights recognized by international law for minorities in Ukraine. ; they do not make it a relevant argument for invoking the right to self-determination. Its situation is, in this respect, different from that of South Sudan, independent since July 2011, which had never been able to exercise its right to self-determination since the independence of Anglo-Egyptian Sudan in 1956. and had constantly demanded its autonomy since then. It also has nothing in common with that of East Timor, a former Portuguese dependency annexed by Indonesia whose accession to independence was favored and supported by the international community thanks, in particular, to a multinational military intervention authorized by the Security Council and the direct administration of this territory by theUN until May 2002.
The Life of Ideas: Does international law prohibit the independence of Crimea and/or its attachment to Russia? ?
Yann Kerbrat: The answer again seems negative. If international law does not support any secessionist demands, it does not prohibit them either. It is up to each State to determine its own internal organization and to each people to organize the conditions of their self-determination. International law is certainly not totally indifferent to the phenomenon, but it only understands it insofar as it can have an impact on respect for human rights and minority rights. In particular, in contemporary times, territorial transfers are difficult to imagine without consulting the populations. The right of peoples to self-determination, this time in its internal dimension benefiting all, certainly prohibits the transfer of sovereignty over a territory without the approval of the populations concerned.
Resolution 68/262 adopted by the United Nations General Assembly on March 27, 2014, which emphasizes that “ the referendum organized in the Autonomous Republic of Crimea and the city of Sevastopol on March 16, 2014, having no validity, cannot serve as a basis for any modification of the status of the Autonomous Republic of Crimea » must, in these conditions, be considered to be more politically inspired than the expression of an existing state of law. The principle of territorial integrity on which it is inspired protects the State from external interventions, it in no way protects it against its own breakup. The validity of such a referendum is assessed exclusively with regard to the internal law of the State in question. International law at most conditions its enforceability against third States.
The General Assembly had already been widely criticized for such positions during the independence of the Comoros by having declared that the desire expressed by referendum by the population of Mayotte to remain French constituted a “ violation of national unity, territorial integrity and sovereignty of the independent Republic of the Comoros » (resolution 31/4 of October 21, 1976). It is a shame that she has placed herself on this ground again.
The Life of Ideas: Is international law violated by Russia’s behavior ?
Yann Kerbrat: It is in this respect that things are clearest. By its repeated positions, but also and above all by the permanent threat of armed intervention that it poses by positioning numerous troops on the Russian-Ukrainian border, the Russian Federation disregards both the principle of non-intervention and that of territorial integrity both protected by the Charter of the United Nations and numerous subsequent instruments. Not all interference is illegal but it is at least when, as here, it uses means of coercion: the threat of military intervention, incursions by Russian soldiers into Ukrainian territory, material and military aid to secessionists. In this case, it is such that it also casts serious doubt on the sincerity of the secession process and tends to show that the attachment is in reality a pure and simple annexation of Crimea by Russia, contrary to the law. international.
The Life of Ideas: Is the treaty annexing Crimea to Russia valid from the point of view of international law? ?
Yann Kerbrat: Concluded by an authority which does not hold the power to conclude treaties and in clear violation of Ukrainian constitutional rules, the treaty to attach Crimea to Russia, ratified by President Putin at the end of March, is void but subject to a relative nullity (it would be an absolute nullity if it had been concluded under duress, which does not seem to be the case since the self-proclaimed authorities of Crimea voluntarily consented to it). Which means that only Ukraine could invoke this nullity, and it is very likely that it will do so. It will follow that it will not be bound by the terms of this treaty and will be able to continue to treat Crimea as part of its territory under its sovereignty. As international jurisprudence systematically gives precedence to the legal title for territorial delimitations, such nullity will not, in the future, be without consequences. The law will, in fact, make it possible to maintain the fiction that there was no transfer of sovereignty, even if the facts were to show that the territory would be dominated by Russia.
The Life of Ideas: What are the consequences of this secession for third States? ?
Yann Kerbrat: Third-party States may, for their part, refuse to recognize this annexation. They will even have to do so since in international law the rule of the prohibition of the recognition of situations acquired through the use or threat of the use of armed force has gradually become established, which was formulated for the first time in 1932 in a memo from US Secretary of State Henry Stimson regarding Japan’s annexation of Manchukuo. It is also under the prism of this rule that the sanctions taken by the United States and the European Union against the Russian Federation and certain high-ranking Russian dignitaries should be assessed: beyond the pressure , undoubtedly insufficient, which they place on the Russian government, they express as much the protest of their authors against what they consider to be a manifest and serious violation of international law as their refusal to be confronted with a situation which they don’t accept. In international law, the silence maintained by a State in the face of a violation of international law can in fact be interpreted as acquiescence.