The Crimea crisis and reterritorialization of international conflicts
Research report 2015 - MPI for Comparative Public Law and International Law
Authors: Anne Peter & Christian Marxsen
The annexation of Crimea by the Russian Federation challenges the old certainties of the international community’s approach to international law. Although, historically speaking, the use of violence between states in the global arena is by no means rare, in the early 21st century the violent unfolding of territorial conflicts between European states was considered a thing of the past. Against this background, the conflict between Ukraine and Russia requires academic investigation and the assessment of its significance for possible current changes in the international legal order.
The example of the Ukraine crisis can be used to test the thesis that international law is currently undergoing a crisis, stagnation or regression following a phase of dynamic development that was sustained by a period of global value consensus after the elimination of the East-West divide (since approx. 1990).
Events in Crimea
Following the protests and unrest that erupted in Ukraine from the end of 2013, in February 2013 President Viktor Yanukovych was removed from office unconstitutionally by parliament and a transitional government was formed. As part of this change of government, in late February 2014 armed militia and regular Russian troops assumed control of Crimea. This ensured that a referendum would be held within a very short period, in which a large majority of the Crimean population voted for an accession to Russia. Shortly after that, Crimea was declared an independent state, which, a few days later, signed a treaty with Russia on Crimea’s incorporation into the Russia Federation.
Classification under international law
These events require an assessment of the legality under current international law. One important question is whether and how intensively Russia violated the prohibition of the use of force . As the influence of Russia on the troops active in Crimea remained uncertain for a long time, difficult questions arose regarding attribution and determination of state responsibility.
Another key set of questions concerns the right of self-determination of peoples. One point for discussion is whether, as suggested by Russian politicians and scholars, this actually grants a right of secession to Crimea. International law is fundamentally hostile to secession and only grants the right to separate from a state under very narrowly defined conditions: under international law, the right of self-determination shall be realized primarily through internal-state mechanisms (e.g. regional autonomy). With regard to Crimea, the almost unanimous ‘Western’ view is that the narrow international law conditions, under which secession must be take place, are not fulfilled.
The independence referendum of March 2014 raises other controversial issues. In the Russian legal opinion, the referendum’s clear result was an expression of the free will on the part of the Crimean population; it constituted the legal and legitimate exercise of this group’s right to self-determination under international law. However, the question remains as to which international law provisions exist for such referenda and the level of influence military presence has on the legality of the referendum. Furthermore, the question arises as to whether even a perfect democratic process that is not preceded by grave human rights violations and the exhaustion of diplomatic negotiations, could justify a territorial change of this nature in terms of international law.
The reappraisal of international law and the phenomenon of epistemic nationalism
A conspicuous feature of the academic appraisal of the conflict between Russia and Ukraine is the fact that the legal assessments of the conflict reflect the geopolitical camps involved. There is hardly a single scholar from Western Europe who considers Russia’s political course as justified under international law. For its part, the Russian legal discourse appears to be dominated by the conviction that the annexation of Crimea is compatible with international law principles. With regard to international legal scholarship, the general and fundamental problem of epistemic nationalism becomes a matter of urgency here. It would appear that the concrete research findings are not always determined by universal arguments, and that the academic statements are determined by their speakers’ embeddedness in their own national discourses and, moreover, consciously or unconsciously support the political aims of their country of origin. Given that an overarching academic discourse (between Eastern and Western Europe, in particular) is weakly institutionalized, this is all the more significant. Scholars from Eastern Europe (and the global South) have little access to the influential publications and conferences on general international law topics (that go beyond special regional questions). Conversely, in many cases they also lack the material resources and expertise necessary for the organization of conferences with universal participation at their own institutions. For this reason, the diverging interpretations of the law often remain on the level of abstract opposition and, in many instances, take the form of a politicized exchange of blows.
As opposed to this, as a global regime, the functioning of international law requires genuine academic legal discourse, in which international law arguments are only acknowledged as valid if they are suited to universal application and can be understood intersubjectively, irrespective of the nationality or other affiliation of the discourse participants. The first precondition for such universal applicability is free and open exchange on international law concepts.
To promote such an exchange, the Institute organised, among other things, an international conference at which scholars from Russia, Ukraine and other Eastern and Western European states could engage in an exchange of information and views. The results of this process were published in the Institute’s journal and were intended to document and advance the current international legal debate, particularly also in Russia and Ukraine.
Impacts on the international legal system
The Russian actions in Crimea and Eastern Ukraine and the international reactions to them could have impacts on the key subfields of international law, ranging from the prohibition of the use of force and the law of armed conflict to the law of sanctions. Moreover, structural questions regarding the development of international law and the academic discourse also arise.
On the one hand, Russia has put forward very extensive interpretations of established legal concepts, such as interventions aiming at the protection of nationals abroad and the right of self-determination of peoples. The vagueness and underdetermination of the established legal concepts emerges as critical here, and calls into question the independence of the international legal system from the political system and the importance of international law as an order that regulates international relations.
Russia’s course of action presents a new type of “non-linear” or “hybrid” armed conflict with the targeted involvement of irregular combatants and the civil population. The regulatory impact of international humanitarian law is weaker here, and, thus, the potentially necessary reinterpretation and adaptation of the law must be debated. The new type of conflict also raises complicated questions regarding attribution, which are central to the field of state responsibility. Finally, the international legal discourse must analyse in greater detail, particularly by taking a human rights perspective, the control of the media and targeted manipulation of the blogosphere that often comes along with massive limitations of freedom of opinion, assembly and demonstration in Russia and other states.
On the other hand, the economic sanctions imposed on Russia raise serious legal questions. These sanctions are difficult to interpret using the traditional concepts of reprisal or countermeasures. They risk violating the human rights of the individuals targeted by sanctions and violating the WTO agreements.
The macrostructure of international law is affected, as past events like the declaration of independence by Kosovo in 2008 are considered as a precedent for Crimea by some commentators. This raises the question as to how the process of customary international law formation functions. How can breaches of the law be distinguished from the formation of new practices and new interpretations of the law?
Russian policy appears to call into question the “delimitation” of the objects of regulation of international law, which has been described by and large since the 1990s, the permeability of state borders and the diminishing significance of the physical territory as the power basis of states. The creation of new spheres of influence and of “frozen” territorial conflicts could cause territory and borders to become more important again. The general question arises, therefore, as to how international legal conflict resolution mechanisms can deal with this reterritorialization of conflicts and whether these mechanisms should be adapted.
Nomos, Baden-Baden (2015)