[Lee Jae-min] The tale of two conflicting laws

By Korea Herald
  • Published : Apr 15, 2014 - 20:43
  • Updated : Apr 15, 2014 - 20:43
With the completion of the domestic proceeding in Moscow to annex the Crimean peninsula after the referendum on March 16, the debates have now moved on to the realm of law. The United States and the EU claim that the annexation is in clear violation of international law. To which Russia counters that the annexation was consummated in compliance with international law and that instead it is Western states that are violating the legal norms. 

Here are a few details. Washington and Brussels point out that the Russian attempt has undermined Ukraine’s territorial integrity, in violation of the cardinal principle codified in Article 2 (4) of the U.N. Charter. Inciting a part of another country to go for a regional referendum and accepting an outcome of the referendum through a hasty annexation treaty infringes upon the territorial integrity of the country. In turn, Moscow turns to another cardinal principle in the same charter ― “self-determination of the peoples” provided in Article 1 (2). People, on their own volition, are entitled to declare a secession from the central government and head to another state for annexation as they wish. In other words, the two laws from the same legal instrument are competing.

In understanding international legal issues like this, repeating a grandiose principle in abstract usually does not reveal that much. The more important (and difficult) part usually lies in the application of a principle to the given facts of the case. As such, the ongoing Crimean debate also requires inquiries into how the cited principles actually play out under the specific circumstances of the situation.

For its part, Russia has conducted extensive research. In his speech on March 18 before the Russian parliament, President Vladimir Putin raised a “you-have-done-so-too” argument, which, by the way, carries significant practical weight in international discourse. Putin referred to the statements made by the United States in the proceedings before the International Court of Justice in 2010 involving the independence of Kosovo from Serbia, where the United States along with many Western states expressed positions in support of the Kosovo independence from the central government referring to the very principle of “self-determination of peoples.” In his March 18 speech, Putin described this change of stance in the span of four years as “hypocrisy.”

What is missing in Russia’s logic, though, is that in the same 2010 proceeding on Kosovo, the World Court put forward an important guideline in this regard. While the court refrained from pronouncing its opinion on the right to secede generally, it did indicate that the invocation of the principle of self-determination requires a situation where “peoples (are) subject to alien subjugation, domination and exploitation.” While material facts still remain murky, a strong case has yet to be made to show such an “alien subjugation” element existed in the Crimean peninsula with respect to the ethnic Russians.

Likewise, where, as here, demographic composition has changed dramatically over a relatively short period of time due to historical, political, and societal reasons, rendering the original inhabitants as a minority group in the region, it is also questionable if the principle of self-determination could apply with equal force. If so, a carefully planned relocation policy by a central government may easily lay the groundwork to rely upon this principle to preempt a future independence movement by the original ethnic group.

Russia’s reliance on the principle of self-determination to justify its decision to annex the Crimean peninsula raises complex and novel issues. The spread of unrest in the eastern Ukraine this week now raises the same question. As much as the final disposition of this issue can potentially implicate ethnic groups and situations in many parts of the world in the future, states and interested entities are watching, with a lot of interest, the development of the legal debates. 

By Lee Jae-min

Lee Jae-min is an associate professor of law at Seoul National University. ― Ed.