Law and Morality in the Crimean Crisis

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Speaking about the Crimean crisis in 2014, some refer to it as an annexation while others prefer to call it a reunification. At first sight it seems that every legal problem can be solved within the framework of an overarching law system.
However, trying to find an answer for this problem, we might be facing an old dilemma, namely the contradiction between law and morality. So, what is of greater importance – the right of people to self-determination or previously written laws?

In order to answer the question, it is important to shed some light on a number of bilateral agreements between Ukraine and Russia and on multilateral ones, which concern the prohibition of use of force and territorial integrity. Among the multilateral agreements there is Article 2 (4) of the UN Charter, which states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state …” Furthermore, Principle III (Inviolability of Frontiers) and Principle IV (Territorial Integrity of States) of the Helsinki Final Act (1975) should also be mentioned in this regard. Last but not least, there is the 1994 Budapest memorandum on security assurances which was concluded after Ukraine became a non-nuclear-weapon state. It acceded to the Treaty on the Non-Proliferation of Nuclear Weapons. According to paragraph 1 of the Budapest Memorandum, China, France and three nuclear powers (Russian Federation, the United States of America and the United Kingdom) agreed to “respect the independence and Sovereignty and the existing borders of Ukraine”.

In paragraph 2 of the Budapest Memorandum they reaffirmed “their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine …”. This Memorandum was signed but not ratified by any country. Thus, its legally binding nature is questionable.With regard to bilateral treaties the 1997 Treaty on Friendship, Cooperation, and Partnership between Ukraine and Russia is worth mentioning. In Article 3 of this treaty the inviolability of borders, the territorial integrity and the non-use of force were enshrined as guiding principles. The treaty was ratified by both states and thus, is legally binding. The Black Sea Fleet Status of Forces Agreement (SOFA) from 1997 should also be mentioned in this regard. By this interstate agreement, signed on 28th of May 1997, Ukraine consented to lease Russian Black Sea Fleets in Sevastopol. The agreement was signed and ratified for 20 years. The president of Ukraine at that time Viktor Yanukovich and the President of the Russian Federation Vladimir Putin signed and ratified the Kharkiv Accords on 21st of April 2010, which prolonged SOFA for 25 years whereas Russia was obliged to grant a discount for natural gas imports for Ukraine. The agreement shall have remained in force until any Party terminates it in writing, which the Russian Federation did after the Crimea occupation on 31st of March 2014.

As we can see at least four of all bi- and multilateral agreements with regard to territorial integrity and the prohibition of the use of force were violated. Putin’s argument therefore was that these treaties were no longer binding since they were signed with Yanukovich’s government, which was overthrown by Ukrainians on 22nd of February 2014. Since then the Russian government refers to the events (18- 22nd of February) as to a coup d’état whereas International Law the Ukrainian government as well as all western media consider it to be the Revolution of Dignity. The Russian government backs its position by the fact that the regime change happened bypassing the constitutional impeachment procedure. So, does the problem lie in the different political positions of the two states? As Marxsen states: “It (Russian political statement about coup d’etat) has no basis in the current doctrine of international law. The question of state succession does not even arise in regard to Ukraine because a revolutionary regime change does not constitute a discontinuity of statehood on a given territory.”

On 16th of March 2014, on the basis of not acknowledging the new Ukrainian government, Russia helped the local Crimean government to hold a referendum, which not only violated the Constitution of Ukraine but also the one of the Autonomous Republic of Crimea. As a result most of the UN member states did not recognize this referendum in Crimea. In the UN Security Council, 13 member states supported a resolution, which would declare the referendum, and any change in the status of the peninsula void, but Russia made use of its veto and torpedoed the resolution. The Russian Federation, however, acknowledges the Referendum in Crimea and refers to the widespread recognition of the declaration of independence of Kosovo, which was proclaimed in spite of the strong protest of the central government, as a precedent in this regard.

All in all, lawyers study, interpret, and always firstly apply the law. But in order to estimate the behavior of states and properly resolve conflicts we should constantly take into account the ethical criteria since the basis of law is morality.