Tuesday, September 02, 2014


Ukraine

Interview: Annexation 'Calls Into Question' Fundamental Basis Of Modern States

A pro-Russian rally in the southern Russian city of Stavropol on March 7.
A pro-Russian rally in the southern Russian city of Stavropol on March 7.
With officials in the Ukrainian region of Crimea preparing a referendum on joining the Russian Federation and Russian lawmakers drafting legislation that would enable Moscow to accept Crimea as a new subject of Russia, RFE/RL correspondent Robert Coalson discussed the issue of annexation with Adam Roberts, senior research fellow in international relations at Oxford University and editor of "Documents On The Laws Of War."

RFE/RL: Could you give us an overview of how annexation is currently viewed by international law?

Adam Roberts:
Annexation is generally understood by international lawyers and by students of my own subject, international relations, as the forcible transfer of territory, often by an occupying power, to the territory of the intervening state. And there's a very strong international norm against annexation -- indeed, one could say that's been a foundation of post-1945 international relations.

RFE/RL: Are there any binding international treaties or agreements that address the topic of annexation?

Roberts:
There's no specific agreement. It arises from, obviously, the provisions of the UN Charter and from international practice since 1945. For example, resolutions of the UN Security Council have been extremely firm about cases of attempted annexation. A clear case was Iraq's attempted annexation of Kuwait in 1990; it was actually proclaimed annexation and the [Security] Council was consistently opposed to it, including, I have to say, the then Soviet Union.

RFE/RL: Have there been any examples of legal, internationally recognized cases of annexation since 1945?

Roberts:
There have been cases of transfer of territory by agreement, but that's not annexation. And there have been cases of something close to annexation but not quite, such as Turkey's role in northern Cyprus, which -- as in many cases of something close to annexation -- hasn't ever got to the point of proclaiming the territory concerned to be part of the intervening state. So it never happened that northern Cyprus was proclaimed to be part of Turkey. So it's very unusual.

RFE/RL: Are there examples of the kinds of relationships between a country and a region of another country, such as the one Moscow is claiming with Crimea?

Roberts:
There are many countries which have arrangements of one kind or another not dissimilar to that in other territories. For example, for some time Croatia had arrangements whereby some Bosnian citizens of Croat origin could get passports and some of them -- some school teachers, for example -- were paid by the Croatian authorities. That is, school teachers in northern Bosnia were being paid by Croatian authorities. So such arrangements are not unknown and, of course, Russia has pursued exactly such arrangements in two parts of Georgia, in Abkhazia and South Ossetia, and claims on that basis to be entitled to have a certain degree of to put it mildly 'influence' in those territories.

So it's not unusual. But the intensely worrying feature of Russian acts toward Crimea is that they have occupied Crimea, in effect, by sending forces in, and occupying forces often claim to be protecting people or territory in that area, but they're still occupying forces.

And so they're bringing to bear a heavy weight of influence on the outcome of any referendum that may be held in Crimea to determine its future. So that's the worrying feature -- the presence of occupying forces and the rush to have a referendum with little prospect of there being effective international monitoring of that referendum.

RFE/RL: If Crimea were able to conduct a completely free and fair and internationally monitored referendum, would that serve as a legitimate basis for secession and entry into the Russian Federation in the view of international law?

Roberts:
It's an interesting question whether it would. Certainly, it would strengthen Russia's position. Whether it would be accepted as a legal basis for the action, really, the judgment on that would vary greatly. Because it is true that there is an inhibition in contemporary international relations against intervening in other states and challenging their territorial integrity. And that's been one of the bases of the extraordinary degree of international peace that we have had in the whole period since 1945. States have not been encouraged to nibble away at other states in the kind of way that we now see happening.

Adam RobertsAdam Roberts
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Adam Roberts
Adam Roberts
And a good example of that is when Turkey intervened in northern Cyprus in 1974 -- on similar grounds to the presence of Russian forces in Crimea today, to protect the frightened Turkish population in northern Cyprus. The world reacted very strongly against that action and a large number, in fact, all members of the Security Council, the UN Security Council, including the Soviet Union, voted to support the territorial integrity of Cyprus against this intervention. And now when similar grounds are proposed in Crimea, that inhibition of the international community, the nervousness about undermining the integrity of states by interventions is rightly apparent. There's no wish to see the fundamental basis of all states being called into question in this way.

RFE/RL: In a related question, does international law have anything to say about the practice of handing out passports to citizens of other countries, as Russia has done in Georgia, Moldova, and Ukraine?

Roberts:
I don't think there's an absolutely clear answer to that question in international law. I think the answer is bound to depend upon the attitude of the country whose citizens are being subjected to these offers, and some countries may proclaim it illegal under their own national law or even national constitution for their citizens to be encouraged to be citizens of another state in that way. But I don't think there's any general rule and, of course, for individuals to have more than one passport is not at all unusual. Many people in many countries do that, and much of the time it causes no harm. Where it does cause harm is where it's coupled with all kinds of support for, pressures for, the secession of particular territories of another state.

RFE/RL: In the case of Crimea, does the fact that it has autonomous status within Ukraine have any bearing on the Crimean government's decision to join Russia and to hold a referendum on the possibility of joining Russia?

Roberts:
It has some. There is, obviously, a huge question about the lawfulness of a decision taken by one particular part of the country where the federal authorities in that country -- in this case, the government in Kyiv -- have not been consulted and not have agreed to that secession or even have not been consulted or agreed on a proper procedure for addressing the issue.

And this all gets back to the huge difficulty of the absolute Russian refusal to recognize the successor government in Ukraine, in Kyiv, even though their own favorite, as it were, interlocutor, [ousted] President [Viktor] Yanukovych, fled from Ukraine leaving a gap that had to be filled.

So I think it's that lack of clarity about the legal situation that is very difficult. And I would certainly strongly advocate all international movers to sit down at the table with Russia -- which is not necessarily a statement that there shouldn't be a firm response on other fronts -- but to sit down at the table with Russia and urge some means of discussing the future of Ukraine which gets people off this situation of rejecting other authorities as illegitimate. There is a need for a practical discussion of the range of issues that now is confronted over Crimea.

RFE/RL: Are there any other issues that are significant concerning the annexation issue from the perspective of international law?

Roberts:
I think that the other issue is the significance of an international presence in Crimea and the way in which outsiders like the UN envoy [Robert Serry] the other day have been threatened, which makes it difficult to have confidence in the free character of the vote that's coming up next week.

RFE/RL: Under international law, what is the status, if any, of a "sovereign right of the people to self-determination" and are there conditions that must be fulfilled in order to exercise that "right"?

Roberts: The principle of "equal rights and self-determination of peoples" is proclaimed in Article 1 of the UN Charter and in several other international instruments. Ever since 1945 there has been controversy about what exactly this principle means and how it can be applied in real-life situations.

The Charter wording was deliberately vague. It avoided the use of a more precise term, "national self-determination," which essentially means that every nation is entitled to form its own state. Undoubtedly the principle of "self-determination of peoples" has played a key role in the process of European decolonization, in the unification of Germany, and in many other important developments since 1945.

However, it leaves many problems unanswered. Among these, the most troublesome is: Which peoples are entitled to this right, and which are not? This question has proved extraordinarily troublesome in many parts of the world and has been at the heart of many conflicts, including in recent years in Kosovo, Sri Lanka, Georgia, and Turkey. In respect of Crimea, the question arises whether the proper unit of self-determination is Ukraine as a whole or just Crimea, or whether also the Crimean Tatars have a right to self-determination.

There are no general all-purpose answers to this question. That is why there is a strong case for addressing this issue, not in terms of the self-righteous expression of absolute principle but in serious negotiation in which the legitimate interests of all parties are recognized.

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