Two Years Later, Crimea is Still Russian An international Law Perspective

On March 18 2016, Russia celebrated the second anniversary of the annexation of Crimea. The region had been under Ukrainian control since 1954, when Nikita Khrushchev transferred it to Kiev in what became known as ‘The gift of Crimea’1: a mere administrative reassessment in the USSR, a geopolitical conundrum 60 years later. (Featured Image © Kremlin)

The Kremlin defends the legality of the procedures that led to the annexation – on 16 March 2014, without Kiev’s approval, Crimea held a referendum to secede from Ukraine and later joined the Russian Federation2 – quoting the Advisory Opinion of the International Court of Justice on the Kosovo declaration of independence (2010)3 as a relevant precedent4; however the European Union and the United States openly contests this claim, and reacted imposing economic sanctions on Russia.5 Nevertheless, to date, the Autonomous Republic of Crimea remains administered as part of the Russian Federation.6 This article will discuss how the international community has reacted, following the so-called duty of non-recognition of an unlawful situation, and why, in spite of that, Russia’s grip on Crimea remains solid.

The Duty of Non-Recognition of an Unlawful Situation

The obligation of non-recognition of an unlawful situation is a general principle of international law. Article 41 of Responsibility of States for Internationally Wrongful Acts7 states that: ‘No State shall recognize as lawful a situation created by a serious breach [by a State of an obligation arising under a peremptory norm of general international law]’. This general obligation has the purpose to ensure that a fait accompli resulting from serious illegalities do not consolidate and crystalize over time into situations recognized by the international legal order. However, according to many commentators, this general principle can be mitigated by external factors, such as the passing of time.8

The duty of non-recognition of an unlawful situation can be mitigated by external factors, such as the passing of time.

The existence of such an obligation can be traced back to the Stimson Doctrine, named after Henry L. Stimson, US Secretary of State during the Hoover administration. This doctrine was developed in the framework of the League of Nations after Japan invaded Manchuria in 1932.9

Although today this principle is considered customary international law10, some questions concerning its efficacy are still left unanswered. First, the content of the duty is not specified. Second, it is not clear if the obligation is self-executing, or if an authoritative organ should recognize it. While the latter seems the obvious answer, it cannot be ignored that, aside from the United Nations, whose efficacy is impaired by the veto power of the five permanent members of the UN Security Council (UNSC), such a body is difficult to identify in the current state of affairs.11

Yalta's Swallow's Nest castle, one of the most iconic symbols of Crimea, © Pixabay

Yalta’s Swallow’s Nest castle, one of the most iconic symbols of Crimea, © Pixabay

Crimea and the Duty of Non-Recognition

Although the UNSC has indeed prepared a draft resolution to support Ukraine’s territorial integrity12, it was not even put to vote, as it would have been unavoidably vetoed by Russia. The General Assembly passed a resolution in defense of Ukraine’s territorial integrity on 27 March 201413, however, given the mere recommendatory nature of the Assembly’s decisions, the document is not legally binding. The resolution strongly recommends all the States, international organizations and specialized bodies to refrain from any action or dealing that might be interpreted as recognizing any altered status concerning Crimea, and to abstain from any act of contact susceptible of being interpreted as worth of recognition of such modified status.14 In the case at hand, this obligation would require all the international actors to refuse any imports of goods coming from Crimea, not to acknowledge Russia’s claims over the maritime areas adjacent to Crimea and to exclude Crimea from the territorial application of any treaty concluded with Russia.15

It is important to note that, in such a context, the obligation is limited to situations concerning, directly or indirectly, the territory illegally acquired, and not to the entire state. A state or an organization should only refuse to import goods directly coming from or produced in Crimea, as certified by Russian authorities, and should not refuse the imports of every goods of Russian provenance.16

Time Heals All Wounds? The “Western Sahara Pattern”

As we have already mentioned, the passing of time could be a factor in the duty of non-recognition. In other words, the passage of time may lead to a gradual acceptance and to a general acquiescence to what was regarded as an unlawful situation. This can be the case, for example, when the international actors do not have enough diplomatic leverage or authority to restore the status quo.17

The Western Sahara case is an insightful parallel to the situation in Crimea.Since Spain relinquished the administrative control of the region in 1975, it has been a disputed territory between the Kingdom of Morocco and the partially recognized Sahrawi Arab Democratic Republic (SADR). Even if Morocco exercises effective control over the region, the international community has never recognized Morocco’s claims: most notably, Morocco is the only African state not part of the African Union, as it withdrew from the organization in 1984 following the then-Organization for African Unity recognition of Western Sahara as a member.18 Nowadays, Western Sahara is generally qualified as a non-self-governing territory under the UN Charter.19

For their part, the United Nations has found no way to end what it labelled as an illegal status quo. In fact, the UN Security Council never imposed a collective binding obligation of non-recognition20, thus leaving the area to Morocco’s de facto sovereignty. Scholars have pointed out that, unfortunately for Sahrawi people, the territory is so vast and isolated – both geographically and politically – that the status quo is unlikely to change.21 In addition, Morocco has also been a key partner of two permanent members of the Security Council: France and, to a lesser extent, the US.22

In plain words, given the impossibility to break the stalemate, the European Union silently recognized Moroccan sovereignty over the Western Sahara for economic reasons.

After many years without significant updates, the European Union added a new protocol in its Fisheries Partnership Agreement with Morocco in 201423, now including territories on the coast of the Western Sahara. Legal experts expressed their concerns, since the agreement violates the international law principle concerning the permanent sovereignty of people over their natural resources and their inherent right to use their natural wealth.24 In plain words, given the impossibility to break the stalemate, the European Union silently recognized Moroccan sovereignty over the region for economic reasons.25

Even though the duty of non-recognition may entail more effective measures within the UN framework, the presence of Russia in the Security Council appears as an insurmountable obstacle with regards to Crimea. The case of Western Sahara, where the Security Council’s intervention was, at best, reticent, is a proof that, without a binding duty of non-recognition, the passing of time is an effective device to keep the status quo. Crimea’s status will remain disputed only if there is a coordinated practice against Russia’s control over the region.

In the immediate aftermath of the annexation of Crimea, the EU26 and the G7 leaders27 expressed strong support for Ukraine and vowed not to acknowledge it. Two years later, said stance has not changed: while Simferopol was celebrating the second anniversary of the referendum, the High Representative of the EU for Foreign Affairs and Security Policy, Federica Mogherini, reiterated the EU’s diplomatic support to Ukraine, confirming its commitment to fully implement its non-recognition policy even through the use of restrictive measures.28 However, the sanctions have not managed to open any talks concerning the sovereignty of Crimea.

Russia’s economic situation may still be crippled by the sanctions, and the overall value of the region can hardly compensate for the losses, but Crimea will remain under direct Russian control for the foreseeable future.

While it can be argued that Crimea certainly bears a far larger strategic value than Western Sahara, given its proximity to Turkey and the ongoing diplomatic face off between Russia and the European Union to acquire a ‘sphere of influence’ in Ukraine, the de facto situation of Crimea will hardly be called into question again without a – unlikely – Russian overture. Moscow’s leadership would face an internal backlash if it started negotiating for the return of the region to Ukraine: while it is true that the referendum of March 2014 happened under dubious circumstances, the demographics of Crimea shows a large Russian ethnic majority, that is now believed to be less than enthusiast of the perspective to return under Ukrainian administration.29

Russia’s economic situation may still be crippled by the sanctions, and the overall value of the region can hardly compensate for the losses, but Crimea will remain under direct Russian control for the foreseeable future.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of International Perspective. Please be advised that all works found on International Perspective are protected under copyright, more information in the Terms of Use.

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By | 2017-01-31T22:45:59+00:00 May 3rd, 2016|Categories: Insight|Tags: , , |0 Comments

About the Author:

Alessandro Fiorellini
Alessandro is an Italian graduate in International and European Law. His main interests are international relations and foreign policy.

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