Debate Map: Ukraine/ Crimea

The Oxford University Press continues with the debate maps, this time on Ukraine/Crimea. The reader is also referred to the last section on the (ir)relevance of international law for a timely debate on how the situation in Ukraine is affecting our attitudes towards international law.  The current discourse allows us to re-examine and apply old practices/views to a new set of facts including State responses to Kosovo’s unilateral declaration of independence, its legality, the views of the ICJ and similarities (or not) with Crimea. We compare Crimea with Turkey’s action in North Cyprus. Or those of Russia in Georgia. Or the US intervention in Grenada and Panama. The discussion at the State level is highly polarised and one gets a feeling that the applicable international law is that which is politically expedient (but at the same time, those who says international law is irrelevant would notice that both Obama and Putin justifies their views and actions on international law). The Crimean context highlights and exposes contentious and developing areas of international law and as seen in the map below, offers scholars the opportunity to dissect each of these areas

OUP last updated the map below on 10 March 2014. For the latest map please click here

“The following index maps scholarly commentary on the legal arguments regarding the public international law (and some domestic constitutional law) aspects of the use of force in Ukraine, published in English language legal blogs and newspapers, and free content from OUP’s online services.

Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.

I. Overviews of Legal Issues

(i) 2 March 2014 Ashley Deeks at Lawfare (asks whether Russia breached Article 2(4), whether that triggers Ukraine’s Article 51 right of self-defence, and discusses two grounds for Russia’s intervention: the protection of Russian nationals, and intervention with the consent of Ukraine’s government)

(ii) 3 March 2014 Ben Saul at The Drum (covers the same ground as Deeks, but adds a conclusion that Russia has committed the crime of aggression).

II. Characterising Russia’s Actions as Aggression

(i) 5 March 2014 Ukraine International Law Association memo published in English on EJIL: Talk! (characterises Russia’s actions as the crime of aggression)

(ii) 6 March 2014 Aurel Sari at Opinio Juris (examines Russia’s action in the light of UNGA Resolution 3314 (XXIX) on the Definition of Aggression of 1974 and the 1997 Black Sea Fleet SOFA between Ukraine and Russia)

A) Legal Effects of Aggression

(i) Jens Ohlin on Aggression from Cassese (Ed.) The Oxford Companion to International Criminal Justice (free content)

(ii) 1997 Latvian Constitutional Court decision (with detailed analysis and English translation) from International Law in Domestic Courts (free content) (a case with echoes of the current crisis, finding inter alia that the 1940 Soviet stationing of troops in Latvia was an act of aggression and thus any territory gained thereby was not lawfully acquired)

III. Possible Grounds for Legality of Russia’s Actions

A) To Support Crimea’s Self-determination

(See also our Syria Debate Map)

(i) Stefan Oeter on Self-Determination from Simma (Ed.) The Charter of the United Nations A Commentary 3rd Ed. (free content)

(ii) Daniel Thurer on Self-Determination from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law(free content)

(iii) James Crawford on Secession from The Creation of States in International Law 2nd Ed. (free content)

(iv) Canadian Supreme Court decision on Secession of Quebec from International Law in Domestic Courts (free content)

(v) Yves Beigbeder on Referendum from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content)

(vi) 26 February 1969 Soviet proposal on definition of aggression submitted to GAOR 24th Session Supp No 20 (UN Doc A/7620) Paragraph 9 (paragraph 6 of the Soviet proposal suggests that intervention in support of self-determination is not aggression)

(vii) 1 March 2014 notification in the minutes of UNSC Meeting 7124 of the Prime Minister of Crimea’s request to President Vladimir Putin to provide assistance in “ensuring peace and tranquillity on the territory of the Autonomous Republic of Crimea”

(viii) 6 March 2014 Chris Borgen at Opinio Juris (on the relationship between any right to secession and the right to self-determination)

B) Intervention to Protect Nationals/Self-defence

(i) Georg Nolte and Albrecht Randelzhofer on Article 51 from from Simma (Ed.) The Charter of the United Nations A Commentary (free content)

(ii) 1 March 2014 Russian Federation Council (upper house of parliament) resolution to use force to protect Russian forces, Russian citizens, and “compatriots”

(iii) 3 March 2014 David Luban at Just Security (commenting on Russia’s 2010 Military Doctrine which declares its right to use force to protect its citizens abroad)

(iv) 7 March 2014 Peter Spiro at Opinio Juris (on Russian legislation offering citizenship to Russian-speakers in Ukraine)

(v) 9 March 2014 Sina Etezazia at Opinio Juris (analysis of claiming self-defence to defend nationals abroad)

C) Other cases of intervention to protect nationals

(i) Philip Leach on South Ossetia from Wilmshurst (Ed.) The Classification of Conflicts (free content)

(ii) Angelika Nussberger on South Ossetia from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law(free content)

D) Intervention by Invitation

(i) Louise Doswald Beck on The Legal Validity of Military Intervention by Invitation of the Government from Brownlie and Crawford (Eds) The British Year Book of International Law Vol. 56 (free content)

(ii) Georg Nolte on Intervention by Invitation from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content)

(iii) 1 March 2014 Vitaly Churkin in the minutes of UNSC Meeting 7124 (saying that Russia is responding to a request for intervention from the Prime Minister of Crimea)

(iv) 3 March 2014 Chris Borgen at Opinio Juris (looking at US policy on who is the “legitimate” authority speaking for a state)

(v) 4 March 2014 Daniel Wisehart at EJIL: Talk! (looks at other case studies and considers the claims of the ousted president of Ukraine and the Prime Minister of Crimea to invite Russia to intervene)

(vi) 6 March 2014 Robert Chesney at Lawfare (suggesting that the question of whether Russian soldiers removing their insignia is a breach of the Geneva Conventions depends on whether you accept the argument about invitation as that affects whether this is an international or non-international conflict)

(vii) 9 March 2014 Tali Kolesov Har-Oz and Ori Pomso at Opinio Juris (offering a full overview of the question of who is the legitimate authority, examining the situation where the choice is between an effective authority and a legal one)

E) Other Cases of Intervention by Invitation

(i) Robert Beck on Grenada from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content)

(ii) ECOWAS in Liberia 1990 and Sierra Leone 1997 Karsten Nowrot and Emily W. Schbacker in the American University International Law Review 14/2 1998

(iii) Sierra Leone: 6 March 2014 Zachary Vermeer in EJIL: Talk! (compares Russia’s action in Ukraine to ECOWAS in Sierra Leone)

F)Responsibility to Protect

(See also our Syria Debate Map)

(i) 5 March 2014 Mark Kersten at Justice in Conflict (looks at R2P angles on Russia’s actions)

IV. Relevance of Ukrainian Constitutional Law

(i) 5 March 2014 Stefan Soesanto at Lawfare (a five part analysis of Russia’s possible justifications focusing on Ukrainian constitutional law)

(ii) 6 March 2014 Zachary Vermeer in EJIL: Talk! (looks at whether the “legitimacy” of the agent that requests intervention is a matter of domestic constitutional law or public international law)

(iii) 6 March 2014 Chris Borgen at Opinio Juris (in the comments section it is pointed out that Article 73 of the Ukraine Constitution requires a referendum of the whole country for any territorial adjustment)

V. Relevance of the 1997 Black Sea Fleet SOFA

(i) 4 March 2014 comments from Olivier Daum on Daniel Wisehart at EJIL: Talk! querying whether the fact that Russian forces were already stationed in the Crimea alters the legal analysis

(ii) 6 March 2014 Aurel Sari at Opinio Juris (looks at arguments that a “material breach” of the SOFA is what escalates this to aggression)

VI. The (Ir)relevance of International Law

(i) 1 March 2014 Peter Spiro at Opinio Juris (explaining that just because international law is being breached with impunity it is still relevant, in response to Eric Posner’s 1 March 2014 blog posting questioning the role of international law in the Ukraine crisis)

(ii) 2 March 2014 Julian Ku at Opinio Juris (agreeing with the argument that states’ attitudes towards international law are guided by self-interest)

(iii) 2 March and 3 March 2014 two posts by Chris Borgen at Opinio Juris (responding to Ku and Posner, setting out ways in which Russia employs the rhetoric of international law and arguing that international law provides a normative language that provides a context for states to assess what consensus exists among the international community)

(iv) 7 March 2014 Mary Ellen O’Connell at Opinio Juris (how Russia is able to use many arguments employed by Western states to justify their interventions and violations of sovereignty)

(v) 10 March 2014 Nico Krisch at EJIL: Talk! (arguing that international law is playing a substantial role in the crisis but that the rules on the use of force have become vague and open to broad interpretation due to post-Cold War liberal interventions)”

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