Poli­tics and Inter­na­tional Law: Three Inter­na­tional Experts Debate the Annex­a­tion of Crimea

This week, the internet plat­form dekoder published a detailed dossier on the annex­a­tion of the Crimea 5 years ago, inclu­ding an inter­view with inter­na­tional law expertsKa­te­ryna Busol, Maria Issaeva und Cindy Wittke: Kate­ryna Busol, Maria Issaeva und Cindy Wittke. They come from three diffe­rent coun­tries – Ukraine, Russia, and Germany – but also from diffe­rent educa­tional and profes­sional back­grounds. None of the three claims to repre­sent their coun­tries’ scho­l­ar­ship and/or prac­tice, instead, each offers her indi­vi­dual perspec­tive, taking into account the diver­sity and most important nuances in current inter­na­tional legal debates about Crimea.

We consider the inter­view highly enligh­tening and decided to publish it here as well.

In the on-going public debates about the lega­lity or ille­ga­lity of the refe­rendum on Crimea and the peninsula’s unlawful annex­a­tion or lawful incor­po­ra­tion into Russian terri­tory, refe­rences are often made to the 1999 NATO inter­ven­tion in Kosovo and Kosovo’s unila­teral decla­ra­tion of inde­pen­dence in 2008. Beyond poli­tical rhetoric, what is the legal subs­tance of this compa­rison from your point of view as an inter­na­tional lawyer?

Kate­ryna Busol: Refer­ring to an excep­tion is always tricky, let alone when that excep­tion is highly deba­t­able. The initi­ally noble notion of huma­ni­ta­rian inter­ven­tion has, unfor­tu­n­a­tely, been compro­mised, espe­cially since Yugo­s­lavia and Iraq. There­fore, Russia’s attempt to justify its inter­ven­tion in Crimea on the basis of such a legally dubious prece­dent is self-defeating.

The refe­rences to Kosovo’s decla­ra­tion of inde­pen­dence also seem flawed, for at least two reasons. First, before 2014, Russia had been excep­tio­nally vocal in oppo­sing Kosovo’s inde­pen­dence aspi­ra­tions. That posi­tion could be explained by Russia’s concern about the seces­sio­nist calls within its own terri­tory, among other things. Second, even in the absence of the former argu­ment, Kosovo’s and Crimea’s “inde­pen­dences” are totally diffe­rent. The processes in Crimea were cata­lysed by a foreign state, with its mili­tary and para­mi­li­tary ensu­ring the hastily orga­nised “refe­rendum” in lieu of inter­na­tional obser­vers and in the absence of any consent by the sover­eign state. This was not the case with Kosovo. There­fore, Russia’s second Crimea-Kosovo compa­ra­tive argu­ment does not stand.

As Rabin­dra­nath Tagore has said, “When peace is active sweeping its dirt, it is storm”. The stormy way in which Russia entered Crimea – an indis­pensable legi­ti­mate part of another sover­eign state – and enforced “peace” there can reason­ably be said to raise ques­tions as to whether peace was its aim initi­ally, if at all.

Maria Issaeva: In order for a compa­rison between the seces­sion of Crimea and the decla­ra­tion of inde­pen­dence of Kosovo to hold up, the latter would have had to have happened within the very short time span of two weeks, and have involved the unila­teral use of mili­tary force by one of the perma­nent members of the UN Secu­rity Council, which would had to have incor­po­rated this new entity into its terri­tory in a matter of days. When it makes this compa­rison, Russia betrays how little atten­tion it pays to the impor­t­ance of multi­la­teral coope­ra­tion and proper proce­dure as necessary compon­ents of lega­lity and legi­ti­macy under inter­na­tional law.

One of the most striking features of the post-Crimean commen­tary from Russian scho­lars and prac­ti­tio­ners of inter­na­tional law was the dramatic change in their argu­ments (and in the offi­cial Russian posi­tion) as compared to those they put forth concer­ning the lega­lity of the seces­sion of Kosovo. If, before Crimea, Russia put a lot of emphasis on the obli­ga­tion to refrain from any action against terri­to­rial inte­grity of any state, quoting, inter alia, the 1975 CSCE Helsinki Final Act, after Crimea the self-determination argu­ments were invoked without so much as a mention of any sover­eign rights over the penin­sula on the part of Ukraine. In Russia, since 2014, one often hears that the Helsinki Final Act is “merely a poli­tical docu­ment”, and thus imposes no obli­ga­tions on states, and one even encoun­ters attempts at justi­fi­ca­tion through the claim that Ukraine is a failed state (and, thus, has no sover­eign rights whatsoever).

Cindy Wittke: Refe­rences to ‘Kosovo’ have already been exhausted in terms of scho­l­arly argu­ments regar­ding its compa­ra­bi­lity to and value as a source of analogy with the annex­a­tion of Crimea in March 2014, in my opinion.

Based on my rese­arch inter­views with Ukrai­nian, Geor­gian and Russian experts on inter­na­tional law, I am coming to the conclu­sion that ‘Kosovo’ became a ‘projec­tion screen’ for diffe­rent narra­tives rela­ting to the legi­ti­macy and ille­gi­ti­macy of Russian and ‘Western’ excep­tio­na­lism. In short, ‘Kosovo‘ has become a sort of hall­mark of various forms of ‚lawfare‘ and a near ubiqui­tous reminder that one cannot consider law and poli­tics as being unconnected.

The refe­rence to ‘Kosovo’ is not, at bottom, merely poli­tical rhetoric, but neither is it (any longer) only encoun­tered in an exchange of dogmatic legal argu­ments: it has become sympto­matic of a clash over the role(s) of inter­na­tional law in inter­na­tional poli­tics. Diffe­rent commu­ni­ca­tors of inter­na­tional law fill ‘Kosovo’ with diffe­rent content and contro­ver­sies that go beyond what happened in and with Kosovo.

Is Crimea a unique case (sui generis) or are we witnessing processes of re-interpretation of the right to self-determination, reme­dial seces­sion and even­tually state sover­eignty in the post-Soviet space?

Maria Issaeva: Crimea is not about a re-interpretation of general inter­na­tional law, and neither is it a sui generis case. It is a point of no return on Russia’s way back to its old Soviet role model and inter­pre­ta­tion of inter­na­tional law.

Domi­na­tion in the post-Soviet space never stopped being a prio­rity for Russia, and pecu­liar inter­pre­ta­tions of inter­na­tional law within what it has, since 1991, regarded as its “zone of influ­ence” always came as a corol­lary to that. The sover­eignty of Russia, like the sover­eignty of the USSR before 1991, was always “more signi­fi­cant” in Russia’s eyes than the sover­eignty of the coun­tries that the USSR/Russia regarded as its satel­lites. Any new legal deve­lo­p­ments rela­ting to reme­dial seces­sion and self-determination are very unli­kely be taken further in connec­tion with the case of Crimea, as it is a rather strai­ght­for­ward case of the use of force, in which ‘self-determination’ was invoked without much of an inter­na­tional law basis.

Cindy Wittke: I think it is really inte­res­ting to take a closer look at what happens or could happen, when we stress the ‘uniqueness’, the ‘incom­pa­ra­bi­lity’ or ‘excep­tion’ of an event or process.

From a legal perspec­tive it can lead us, for instance, to the ques­tion of whether such an event or process might be ‘outside of the law’. In my opinion, making situa­tions of emer­gency and excep­tion a new ‘norma­lity’ makes the rein­ter­pre­ta­tion of inter­na­tional law and its princi­ples possible; i.e. it can change what some actors argue to be legal and legi­ti­mate in the conduct of poli­tics and warfare.

As a coun­ter­ar­gu­ment to such a view, I would like to point out that legal and/or poli­tical norma­lity is and has always been extre­mely rare. Rather, law’s func­tion is to regu­late and settle disputes according to a set of agreed rules – a ‘norma­lity’ is not required in order for it to do so, and there is no ‘outside the law’ – regar­ding ‘Kosovo’ or ‘Crimea’.

Kate­ryna Busol: On the one hand, one could point out that the situa­tions of Trans­nis­tria, Kosovo, Cata­lonia, the occu­pied Pales­ti­nian terri­to­ries and Nort­hern Cyprus demons­trate that the issues of occup­a­tion or alleged self-determination and seces­sion raised in the context of Crimea are not excep­tional. At the same time, there are a number of factual and legal aspects that make the Crimean case stand out:

First, it marked an unex­pec­tedly major outbreak of a lasting armed conflict and occup­a­tion in Europe in the 21^stcentury. This, inevi­tably, has an effect on efforts aimed at recon­ci­lia­tion and accoun­ta­bi­lity. By way of compa­rison: the 2008 Russia-Georgian war lasted five days, and it took the Inter­na­tional Criminal Court almost eight years to open an inves­ti­ga­tion into it. Given the level of comple­xity of the Crimean case and Ukraine’s situa­tion in general, one would hardly expect processes in this and other avenues of inter­na­tional justice to be more dynamic.

Second, the Ukrai­nian conundrum is aggra­vated by the new, rapidly deve­lo­ping aspects of hybrid warfare in the post-truth era, such as cyber-attacks and the use of social media.

Third, Crimea is incre­a­singly demons­tra­ting the alleged sui generisviola­tions. This includes the distor­tive resto­ra­tion of the Bakhchy­s­arai Palace of the Crimean Tatars with a view to their cultural erasure and the erec­tion of the Kerch Bridge, connec­ting Russia with Crimea, which was accom­pa­nied by the large-scale appro­pria­tion of property and unaut­ho­rised under­water and archaeo­lo­gical exca­va­tions, all of which are prohi­bited by inter­na­tional law of armed conflict.

Looking at Crimea today, in March 2019, what legal ques­tions and issues are coming up that we need to discuss? Is inter­na­tional law ‘fit’ to deal with the past, present, and future of Crimea?

Cindy Wittke: As I have already pointed out, there is no such thing as ‘outside the law‘. When we discuss whether inter­na­tional law is ‘fit’ to deal with Crimea, I would argue for a turn towards prag­ma­tism in approa­ching ques­tions regar­ding the ever­yday regu­la­tive power of inter­na­tional law with regards to the de jure and de facto status of Crimea, both in the present and fore­see­able future.

Looking at other protra­cted inter- and intra-state conflicts over terri­tory in the post-Soviet space, I feel the urge to stress that if Ukraine wants the terri­tory, and the people of Crimea, ‘back’, then alie­na­ting both the terri­tory and its inha­bi­tants might not be an ideal stra­tegy for it, despite the massive viola­tion of its terri­to­rial integrity.

Also based on other status conflicts beyond the region, I would like to argue for a prag­matic approach in buil­ding ‘islands of agree­ment’ or for dealing with ever­yday issues, e.g. infra­st­ruc­ture, energy, roads, water supply. In short, taking the local/community into account and stri­ving for regu­lated inter­ac­tions without reco­gni­tion, as well as anti­ci­pa­ting poli­tical and legal sett­le­ments might be a prag­matic future strategy.

Maria Issaeva: Had it taken place in the 19th century or earlier, the forcible annex­a­tion of Crimea would have been perfectly in tune with widespread prac­tices used by many Euro­pean states. Accep­ting that inter­na­tional law is not fit to deal with Crimea would mean a huge step back for contem­porary inter­na­tional law, which came into exis­tence after the two World Wars had broken out in direct conse­quence of the war poli­tics of the Euro­pean powers.

Main­tai­ning a balance between a prag­matic approach in dealing with present-day Russia and the appli­ca­tion of the law of state respon­si­bi­lity when the terri­to­rial inte­grity of Ukraine is being violated appears to remain of vital importance.

Kate­ryna Busol: From an inter­na­tional perspec­tive, I agree with Maria Issaeva, to acknow­ledge that inter­na­tional law is unfit to deal with Crimea would be, first, a shat­te­ring blow to the whole post-World War II legal order and, second, simply not true. The norma­tive part is, predo­mi­nantly, in place: the use of force or the threat thereof are prohi­bited, borders cannot simply be changed unila­te­rally, the exer­cise of the right to self-determination is not uncons­trained and there are rules gover­ning the conduct of an occu­p­ying state.

It is the proce­dural, the imple­men­ta­tion part, which is flawed, i.e. too readily gives way to Real­po­litikconsi­de­ra­tions. However, if this is the case, modi­fying the norms could hardly bring about the desired change, as it is the inter­na­tional willing­ness to enforce them that needs to become more cohe­rent. As regards the domestic dimen­sion, many inter­na­tional law mecha­nisms are trig­gered or cata­lysed by internal steps. For instance, the launch and dyna­mics of inves­ti­ga­tions by the Inter­na­tional Criminal Court depend to a consi­derable degree on domestic procee­dings concer­ning the alleged war crimes and crimes against huma­nity. The quality of such procee­dings depends on domestic imple­men­ting legis­la­tion and on the exper­tise of domestic inves­ti­ga­tors, prose­cu­tors, defence lawyers and judges. This is one of the many examples of the inter­con­nec­ted­ness and inter­de­pen­dence of the inter­na­tional and domestic compon­ents of inter­na­tional law that, inevi­tably, impact its effi­ci­ency, inclu­ding with respect to Crimea.

In a 2014 article he wrote for the German daily F.A.Z., international-law scholar Stefan Talmon spoke of a “duty to annoy Russia”, poin­ting to the neces­sity of active non-recognition of Crimea’s status with respect to what he consi­ders its illegal annex­a­tion by Russia. 
Yet, there is also a huma­ni­ta­rian poli­tical principle that the civi­lian popu­la­tion of an annexed terri­tory should not be subjected to addi­tional suffe­ring through inter­na­tional measures such as sanc­tions that affect this terri­tory. In your opinion, what does this mean in prac­tice in 2019, and beyond?

Cindy Wittke: Of course, sanc­tions against Russian acts of aggres­sion and breaches of inter­na­tional law are important, from both legal and poli­tical points of view. Yet, again, the ques­tion is: what we can learn from the ever­yday reality of other protra­cted status conflicts?

What impli­ca­tions do the situa­tions in those other terri­to­ries have, from not only a huma­ni­ta­rian but also human perspec­tive, for the people living in Crimea, for the refu­gees, who have mostly settled in other parts of Ukraine, and for the people living in the Ukrai­nian regions borde­ring Crimea? Estab­li­shing chan­nels for poli­tical dialogue and tech­nical coope­ra­tion through ‘islands of agree­ment’ might – despite making legal and poli­tical ambi­guity a stra­tegy – prepare paths for future settlements.

Maria Issaeva: Crimea has sent Russia very far back in time, intel­lec­tually, econo­mi­c­ally and other­wise, and the first people to become the victims of this massive viola­tion of inter­na­tional law were, along with Ukraine on the other side, people in Russia, as well as the people living in Crimea, by virtue of its incorporation.

In a way, Crimea’s case has reve­aled a “Stock­holm syndrome” among Russians vis-à-vis their poli­tical leadership. The “war of sanc­tions”, which are pres­um­ably being imposed to perform said “duty to annoy”, should be a war between governments, and not between people.

Kate­ryna Busol: The formu­la­tion of this ques­tion is tricky in two regards. First, the word “annoy” seems to add a justi­fi­ca­tory flavour, as if Russia’s reac­tions could some­times be accepted as an answer to the alleged “irri­ta­tions” – such as the Crimea-related non-recognition reitera­tions and sanc­tions – that gene­rated them. This is hardly the case. Sanc­tions and coun­ter­mea­sures are not uncommon in inter­na­tional law. For instance, exten­sive sanc­tions were imposed on Libya in connec­tion with the bombing of the plane over Lockerbie. It seems natural for a state that is actively annexing the terri­tory it is occu­p­ying to face similar consequences.

Second, although a state is bound to ensure, to the best of its abili­ties, the rights and free­doms of its popu­la­tion in terri­tory that belongs to it which is occu­pied or tempora­rily uncon­trolled, such an obli­ga­tion is not unli­mited. An abso­lute obli­ga­tion on the part of an injured state to grant the full spec­trum of rights and privi­leges to its popu­la­tion in terri­to­ries of that state that are controlled by another state would simply be unrea­listic. This is a very tricky situa­tion on a legal, poli­tical, diplo­matic, huma­ni­ta­rian and, first and fore­most, human level. It is unli­kely that any initia­tives by Ukraine to impede the supply of food or other life-saving resources to the penin­sula or urging other states or orga­ni­sa­tions to do so would pass the lawful­ness threshold.

At the same time, such cases are rarely that black and white. The propor­tio­na­lity and the depth of an effort by Ukraine to help its Crimean popu­la­tion would have to be assessed on a case-by-case basis.

The trickiest part would be to balance the policy of non-recognition and the accom­panying sanc­tions with rebuil­ding and main­tai­ning rela­tions with the resi­dents of Crimea, espe­cially in light of all the mass media influ­ences they are exposed to.

Is there a universal inter­na­tional law that regu­lates state’s conduct? Or do we need to debate clashes between Russian, Ukrai­nian, Western and other approa­ches to inter­na­tional law and its role in inter­na­tional politics?

Cindy Wittke: Based on my rese­arch, I would like to stress that inter­na­tional law and poli­tics can hardly be consi­dered as uncon­nected. On the other hand, the language of inter­na­tional law is not used only as an instru­ment in the toolbox of inter­na­tional politics.

The use of such language is often rooted in a belief in inter­na­tional law as an objec­tive insti­tu­tion with which we can distin­guish between proper and improper conduct on the part of a state. However, this belief in inter­na­tional law’s norma­tive power deserves critical reflec­tion e.g., in light of recent debates in inter­na­tional legal scho­l­ar­ship on whether there are Russian (and other) approa­ches to inter­na­tional law and, ulti­mately, on the extent to which inter­na­tional law genui­nely is international.

Who and/or what deter­mines which norms and inter­pre­ta­tions are appli­cable? I would argue that we need to realise that, since 1991, the successor states of the former Soviet Union have faced the chal­lenge of formu­la­ting and imple­men­ting their own poli­cies of inter­na­tional law in inter­na­tional poli­tics as part of their state buil­ding and compre­hen­sive trans­for­ma­tion processes. Strong dyna­mics of conflict have shaped the inter­ac­tion of states in the post-Soviet space – e.g. the annex­a­tion of Crimea and the outbreak of violent sepa­ra­tist conflicts in eastern Ukraine in 2014 – and have confronted the inter­na­tional commu­nity with diffe­rent takes on inter­na­tional law that seem to ques­tion funda­mental princi­ples of inter­na­tional and regional legal and poli­tical order(s).

Thus, we need tohear more voices from the region and take inter­na­tional law debate; seriously without ‘Orien­ta­li­sing’ Ukraine, Russia and the ‘Ukraine Crisis’.

Maria Issaeva: Examples of cases where most powerful actors choose to disobey the law in pursuing their self-interest are not hard to find; in this regard Russia is not a unique state. It would be diffi­cult, now, to deny that all of the perma­nent members of the UN Secu­rity Council, which was entrusted in 1945 with the task of main­tai­ning inter­na­tional peace and secu­rity, have failed this posi­tive respon­si­bi­lity. In this regard, each of them can be said to be one of the main threats to universal inter­na­tional law, rather than its guardian.

There are most certainly country-specific aspects of every approach to law in general, and to inter­na­tional law in parti­cular, inclu­ding with respect to how the law is made and applied in a parti­cular state, but also how the law is violated. For example, Russian government is so used to playing on a unified poli­tical field, where it can bend and abuse its national law to serve its own inte­rests – rather than being compelled to forge compro­mises with and among various civil society actors – that it might seem natural to them at a certain stage to try to do the same with inter­na­tional law. In this regard, it might be a useful exer­cise to assess indi­vi­dual national poli­tical approa­ches to law, inclu­ding inter­na­tional law.

Kate­ryna Busol: As a lawyer and as a person coming from a country affected by war, it pains me to admit that the inter­pre­ta­tion and appli­ca­tion of inter­na­tional law, which by its very name is meant to be inter­na­tional, is often substan­ti­ally affected by domestic poli­tical agendas. Indeed, it is quite popular now to ques­tion the univer­sa­lity of inter­na­tional law and call for a wider look at its inter­pre­ta­tions. Ironi­cally, such calls usually incite closer scru­tiny of Russian, Chinese or Brazi­lian inter­pre­ta­tion of inter­na­tional law – hardly ever of Viet­na­mese, Guate­malan or Ukrainian.

At the same time, the weak enfor­cea­bi­lity of universal inter­na­tional law and its poli­ti­ci­sa­tion domesti­cally do not always make the reso­lu­tion of an issue impos­sible. For instance, the expected UNSC veto on inter­na­tional efforts to ensure justice for Syria cata­lysed the nume­rous respec­tive domestic procee­dings in Germany, The Nether­lands, Sweden under the universal juris­dic­tion principle.
Simi­larly, the UNSC veto on the crea­tion of an ad hoc tribunal on the downing of flight MH17 led to the crea­tion of the Joint Inves­ti­ga­tion Team and the launch of corre­spon­ding domestic procee­dings in The Nether­lands. There­fore, it remains to be hoped that the poli­tical flavour of legal reaso­ning of certain states will not perma­nently obst­ruct the sett­le­ment of the Ukrai­nian case but will also open new domestic or regional legal avenues for dealing with it.