Russia’s Annexation of Crimea: The Mills of International Law Grind Slowly but They Do Grind

Russia’s Annexation of Crimea: The Mills of International Law Grind Slowly but They Do Grind Robin Geiß 91 INT’L L. STUD. 425 (2015) Volume 91 Published by the Stockton Center for the Study of International Law 2015 International Law Studies 2015 Russia’s Annexation of Crimea: The Mills of International Law Grind Slowly but They Do Grind Robin Geiß  CONTENTS I. Introduction ................................................................................................ 426 II. Crimea’s Status after Ukrainian Independence in 1991 ........................ 428 III. Attempts at Status Alteration in the Aftermath of the Ukrainian Revolution of 2014..................................................................................... 429 IV. Crimea’s Status under International Law ................................................ 431 A. Russia’s Unlawful Intervention ........................................................... 431 B. The Inseparability of the Link between Russia’s Unlawful Use of Force and the Purported Territorial Status Alteration of Crimea .. 432 C. Remedial Secession or Restoration of Historic Rights? .................. 437 1. Crimea’s “Secession” as a Case of Remedial Secession? .......... 438 2. The Takeover of Crimea as a Restoration of Russia’s “Historic Rights”? ............................................................................................ 441 D. Crimea’s Current Status as an Occupied Territory .......................... 443 V. Legal Consequences and Legal Options for the Way Ahead .............. 447  Professor of International Law and Security, University of Glasgow. The thoughts and opinions expressed are those of the author and not necessarily of the U.S. government, the U.S. Department of the Navy or the Naval War College. 425 Russia’s Annexation of Crimea Vol. 91 I. INTRODUCTION W I ith the success and future of the “Minsk II” Agreement1 still uncertain, world attention is currently centered on the armed conflict in southeastern Ukraine. This conflict has brought about the most serious post-Cold War security crisis between the Russian Federation and the West to date. In contrast, the situation of Crimea rarely makes headlines these days.2 But notwithstanding current security priorities in eastern Ukraine, Crimea is, of course, an integral part of the current crisis and a key element and decisive bargaining chip in attempts to broker a peace for Ukraine. From the perspective of international law, accepting Russia’s “absorption” of Crimea is wholly inconceivable. It would severely, perhaps even fatally, undermine Article 2(4) of the UN Charter and the international legal security architecture as a whole. And it would thereby set a dangerous precedent, especially if President Putin should continue to turn his Soviet Union (USSR) nostalgia into action. However, from a political perspective and if peace in Ukraine is to remain a realistic prospect, somehow accepting Crimea’s incorporation into the Russian Federation, albeit highly undesirable, to some observers seems almost inevitable.3 According to them it may be the price to pay for unheeding NATO enlargement and eastward European Union (EU) expansion in disregard of realpolitik considerations.4 It appears that at least tacitly—and in some cases explicitly—some Western 1. The February 11, 2015 agreement between the leaders of Ukraine, Russia, France and Germany was also signed by pro-Russian separatists. For an English translation, see Minsk Agreement on Ukraine Crisis: Text in Full, THE TELEGRAPH (Feb. 12, 2015), http:// www.telegraph.co.uk/news/worldnews/europe/ukraine/11408266/Minsk-agreement-onUkraine-crisis-text-in-full.html. 2. See Tom Cohen, Is Crimea Gone? Annexation No Longer the Focus of Ukraine Crisis, CNN (Apr. 1, 2014), http://edition.cnn.com/2014/03/31/politics/crimea-explainer/. 3. See remarks by Dianne Feinstein in Brett Logiurato, Putin has Already Successfully Moved the Goalposts on Crimea, BUSINESS INSIDER (Mar. 31, 2014), http://www. businessinsider.com/crimea-putin-won-in-ukraine-obama-2014-3?IR=T. See also former Secretary of Defense Robert Gates in John D. Stuster, Gates: Crimea is Already Gone, FOREIGN POLICY (Mar. 9, 2014), http://foreignpolicy.com/2014/03/09/gates-crimea-is-alreadygone-updated/ (“I do not think that Crimea will slip out of Russia’s hand”); Elmar Brok, Die Krim Geht Nicht Zurück, ZEIT ONLINE (Mar. 26, 2014), http://www.zeit.de/pol itik/ausland/2014-03/krim-ukraine-brok-jazenjuk. 4. John J. Mearsheimer, Why the Ukraine Crisis is the West’s Fault, FOREIGN AFFAIRS, Sept.–Oct. 2014, at 77, available at http://www.foreignaffairs.com/articles/141769/john-jmearsheimer/why-the-ukraine-crisis-is-the-wests-fault. 426 International Law Studies 2015 politicians have accepted as much.5 What, if any, are the (legal) options to achieving this balancing act between the legally inconceivable and politically possibly inevitable acceptance of Crimea’s altered status? Or is it all a question of endurance and determinedness and confidence that time will tell? Chancellor Angela Merkel in her speech at the Munich Security Conference in February 2015 unwaveringly said, “Europe’s borders are and will remain unalterable.”6 Similarly, the EU’s Foreign Affairs Council, meeting on November 17–18, 2014, reiterated that the EU condemns and will not recognize the illegal annexation of Crimea and Sevastopol.7 And, indeed, State practice since 1945 shows that in the long run unlawful annexations are difficult to uphold and that a collective strategy of non-recognition is likely to pay off over time. As is well-known, Albania, Austria, the Baltic States, Czechoslovakia and Ethiopia were all resurrected as the same States that had existed prior to their annexation, which, ergo, had no enduring legal nor status-altering effect.8 The mills of international law grind slowly but they do grind. For the time being the international community and Western States in particular are committed to resisting any legal status alteration of Crimea with the same stamina and tenacity with which they resisted such alterations in relation to the Baltic States during Soviet occupation. But there is at least one marked difference between the situation of the Baltic States and that of Crimea, which, in addition to Russia’s uncompromising strategic interest in the peninsula, may lower the long-term prospects of a coordinated non-recognition strategy. Unlike in the case of the Baltic States— and notwithstanding the flaws of the referendum held on March 16, 2014—at least for the time being the majority of the Crimean population appears genuinely to support Crimea’s “accession” to the Russian Federation. Against this backdrop, the present analysis considers the attempts to alter Crimea’s territorial status in March 2014 and analyzes its resultant cur5. See Cohen, supra note 2. 6. Federal Chancellor Angela Merkel, Speech on the Occasion of the 51st Munich Security Conference, (Feb. 7, 20 (...truncated)