April 21

Russia’s Annexation of Crimea: a Clear Violation of International Law

International lawThe Russian annexation of Ukraine’s Crimea is a clear breach of international law. This is evidenced by the international legal principles of jus cogens (peremptory norms) and jus ad bellum. Russia’s behavior is both a violation acceptable international norms and an act of aggression for which there is no justification. When we look at the principles of jus cogens and jus ad bellum, it becomes clear that Russia has violated international law. The question now becomes how the international community should handle Russia’s aggression? And, what implications such decisions will have on future legal precedents? These questions are very important, as the international community’s response to Russian aggression against Ukraine could set the standard on future responses to unprovoked military action against sovereign states.

Jus cogens is defined as “certain fundamental, overriding principles of international law, from which no derogation is ever permitted” (Cornell University Law School). Wars of aggression, slavery, genocide and torture, are, for the most part, actions which are condemned by the vast majority of the international community. Therefore, any state that participates in such actions is failing to adhere to established peremptory norms (jus cogens) and is violating international law. The annexation of territory clearly violates jus cogens because of legal precedent established by international treaties (Kellog-Briand Pact, London Charter, UN Charter, etc.). According to Rafael Nievo-Navia, jus cogens can be extrapolated from:

(i) Norms which have a fundamental bearing on the behavior of the
international community of States as a whole and from which no derogation
is permitted at all. One example is the principle of good faith;

(ii) Norms which are necessary for the stability of the international juridical
order, for example pacta sunt servanda and general principles of law
including res inter alios acta;

(iii) Norms referred to as having humanitarian objects and purposes including
certain principles of human rights and international humanitarian law;

(iv) Norms of general interest to the international community as a whole or to
international public order. Examples are: the goals and aspirations set out in
the preamble to the Charter of the United Nations:

(v) Norms which are binding on all new States even without their consent as
being established rules of the international community. Examples are the
principles of the freedom of the high seas or the common heritage of
mankind, the protection of the environment and respect for the independence
of States.

It becomes obvious, when one looks at established jus cogens that the annexation of territory is a clear violation of peremptory norms. Russia’s invasion and subsequent annexation of Crimea was undeniably a violation of international legal precedent.

Jus ad bellum, when applied to Russia’s invasion of Ukraine, serves as further evidence that Russia is in violation of international law. Jus ad bellum is part of Just War Theory and often falls under international humanitarian law. Jus ad bellum can be defined as the criteria a nation must first meet before going to war with another state. The principles of jus ad bellum are as follows:

1. Just Cause
2. Right Intention
3. Proper Authority and Public Declaration
4. Last Resort
5. Probability of Success
6. Proportionality

When we look at the Russian invasion of Ukraine it is clear that only one of these criteria may have been met; probability of success. Even then, it can be argued that the long term consequences will actually prove detrimental to Crimea. Since Crimea is now part of Russia, which is currently subject to a host of economic sanctions, Crimea’s economy will suffer under Russian stewardship. Under the principle of jus ad bellum Russia’s invasion of Ukraine had no justification and represents an act of aggression; an illegal act under international law.

Besides violating jus cogens and failing to meet jus ad bellum, Russia’s invasion and annexation of Crimea was also a violation of international treaty law, more specifically, UN resolutions 2625 and 3314. Article 1 of UN resolution 3314, defines aggression as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations as set out in this definition.” Russia’s invasion and annexation of the Ukraine’s Crimea is certainly an act of aggression and definitely constitutes a violation of the UN Charter. Article 3A of UN resolution 3314 reinforces this fact in prohibiting “any annexation by the use of force of the territory of another state or part thereof.” The preamble of UN resolution 2625 clearly states that, “any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a state or country or at its political independence is incompatible with the purposes and principle of the (UN) Charter.”

Since Russia is in clear violation of international law, the question is, what should the international community do? The answer can be found in Chapter VII of the UN Charter (Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression). This chapter clearly outlines the steps the UNSC is to take should a UN member state commit an act of aggression against another. So far, some UN members (through unilateral action) appear to be adhering to these guidelines (currently utilizing article 41). Should actions allowed under article 41 fail, military action (allowed under article 42), could be utilized as well. However, a major problem with this is that official UN implementation of articles 41 and 42 cannot currently take place due to the need for unanimous approval by the UNSC (of which Russia is a member).

Russia will obviously not approve official (internationally recognized) sanctions against itself, so how should this be handled? The answer is simple and has been suggested on numerous occasions (based upon Russia and China’s political maneuvering within the UNSC); simply require a majority approval to implement future UNSC actions rather than a unanimous one. Russia and China are known spoilers within the UNSC and have consistently used their veto power for strategic reasons. This fact makes it essential that the UNSC adopt new procedures that will allow the UNSC to undertake action with a majority vote, rather than a unanimous one. Should this essential restructuring take place, the UNSC will become a much more effective mechanism for dealing with future international threats.

The international community’s response to this crisis, whatever it may be, will either establish new peremptory norms (allowing unjustified invasion and annexation of sovereign states), or reinforce existing ones which condemn unjustified aggression and annexation of territory. Should the former precedent be established, the world we live in will certainly become a terrifying place. By permitting states to violate the sovereignty of others, allowing aggressive annexation territory without fear of repercussions, we will be setting the stage for a new age; one in which global stability and security will be virtually non-existent. However, should the latter take place, global stability will be further reinforced through the solidification of jus cogens and the subsequent strengthening of international law. By establishing strong legal precedents and holding nations accountable for their actions, the world will become a much safer place and future problems such as this will become easier to address.

Bibliography
Cornell University Law School. (n.d.). jus cogens. Retrieved from Wex Legal Information Institute: http://www.law.cornell.edu/wex/jus_cogens

Nieto-Navia, R. (n.d.). INTERNATIONAL PEREMPTORY NORMS (JUS COGENS) AND INTERNATIONAL HUMANITARIAN LAW.

United Nations. (1945, June 26). CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION. Retrieved from UN.org: http://www.un.org/en/documents/charter/chapter7.shtml

United Nations General Assembly . (1974, November 29). UN Resolution 3314. Retrieved from UN.org: http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/NR073916.pdf?OpenElement

United Nations General Assembly. (1970, October 24). UN Resolution 2625. Retrieved from UN.org: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/2625 (XXV)