Russia, Ukraine, and International Law

The situation in eastern Ukraine is reaching a boiling point. Pro-Russian mobs attacked government buildings in Donetsk and Horlivka while fully armed militiamen disarmed police officers and surrounded the mayor’s office in Slaviansk. Dressed in relatively new camouflage uniforms with no insignia, pro-Russian separatists carry the most advanced Russian assault rifles—the AN-94 and the AK-74. Unlike the infamous AK-47, the AN-94 and the AK-74 are much more expensive and are difficult to acquire. But they can be seen in the hands of pro-Russian militiamen carrying them with pride and taking full advantage of their terrorizing effects. What these militiamen demand is a new state, one that can join Motherland Russia, as did Crimea (the region of Crimea seceded from Ukraine on March 16 and joined the Russian Federation). The government in Kiev, and most Ukrainians are opposed to such a separation. So are the United States and the European Union, finding unilateral secessions and annexations to be in violation of international law.

According to the Ukrainian constitution, a national vote by “all Ukrainians” is required in order for a region to secede from the country. This requirement is on par with principles of international law barring groups or regions from unilaterally seceding from the home country. As a matter of principle, a country’s territorial integrity and its sovereignty must be respected, and a particular group of people in a particular region or province cannot unilaterally vote for secession through referenda. But there are exceptions to this rule.

Regions can seek independence if the home country has violated their right to self-determination. This means the people’s right to pursue political, economic, educational, and cultural goals has been suppressed and the state has denied them a fair and equal opportunity as citizens of the home country. This is certainly not the case in eastern Ukraine and was even far less the case in Crimea.

The second condition under which a state or a region can secede from the home country is gross human rights violations. After the disintegration of Yugoslavia, the region of Kosovo sought to secede from Serbia and form an independent state. A bloody war broke out during which systematic ethnic cleansing by Serb forces demanded immediate international attention and a swift intervention. UN Security Council 1244 declared Kosovo under international supervision and paved the way for the 2008 referendum and subsequent independence of Kosovo despite strong opposition from Serbia.

The Serbs took their case to the International Court of Justice (ICJ). Upon Serbia’s request, the UN General Assembly asked the ICJ to issue an advisory opinion on Kosovo’s status. After a thorough examination, the ICJ did not find issue with Kosovo’s independence and thus declared it to be legal. But the world knew that supporting secessions, and thus undermining territorial integrity—the backbone of the modern international system—would be costly and would set precedent for future secessionist movements. Therefore, a decision was made that Kosovo’s independence was not to set a precedent and was thus specific to the unique facts surrounding the situation in Kosovo. Not very convincing some may argue.

While the situation in Ukraine is vastly different from the conditions then present in Kosovo (no self determination, grave humane rights violations, ethnic cleansing, etc.), Russia may seek to intervene on behalf of “Russian ethnics” and “Russian speakers” if they are to be “harmed.” In 2008, Russia invaded Georgia and tore apart the regions of South Ossetia and Abkhazia. Russia has been served by such aggressions in the short term but the largest country in the world has its own separatist movements with which to deal. Russia has fought two costly and brutal wars in Chechnya and has had to deal with a number of terrorist attacks by Chechen Islamists every year. The Tatars, the Udmurts, the Mordvins and others may seek to ask Russia for the same rights Russia is keen to protect in Ukraine and Georgia—the right to self determination. Their demands are presumed to fall on deaf ears while Russia continues to supply and train armed militias in Ukraine.

The central government has given armed separatists until April 14 to put down their weapons and to cease the occupation of government buildings. But the militias have defied Kiev’s ultimatums and are now preparing for a door-to-door battle with Ukraine’s anti-terrorism taskforce dispatched to the region. The militiamen’s bold actions are due to their belief that Russia will come to their rescue if attacked. But who will come to Ukraine’s aid if Russia continues to claw away at Ukraine’s territorial integrity?

This opinion piece was written by Arash Aramesh, a National Security Analyst and Juris Doctor candidate at Stanford Law School. He just returned from Ukraine and Moldova. He has published in the International Herald Tribune, The Huffington Post, The Majalla, the Stanford Lawyer blog, and The Diplomatic Courier, among others. He appears frequently on BBC, AlJazeera English, and Sky World News. He can be found on Twitter at @ArameshArash.