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Debate Map: Ukraine Use of Force

Last Updated: 8 May 2014

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 (except where stated) 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

II. Characterising Russia's Actions

A) AS AGGRESSION

(1) Legal Effects of Aggression

(2) Relevance of the 1997 Black Sea Fleet SOFA

(3) Other Ukraine / Russia Treaties

B) AS AN INTERNATIONAL ARMED CONFLICT

III. Crimea's Independence and Absorption by Russia

A) BACKGROUND READING

B) CRIMEA'S DECLARATION OF INDEPENDENCE AND SECESSION REFERENDUM

C) (NON-)RECOGNITION OF CRIMEAN INDEPENDENCE

D) SECESSIONIST PRECEDENTS

IV. Possible Grounds for Legality of Russia's Actions

A) TO SUPPORT CRIMEA'S SELF-DETERMINATION

B) INTERVENTION TO PROTECT NATIONALS/SELF-DEFENCE

C) OTHER CASES OF INTERVENTION TO PROTECT NATIONALS

D) INTERVENTION BY INVITATION

E) OTHER CASES OF INTERVENTION BY INVITATION

V. Escalations and Implications

VI. The (Ir)relevance of International Law

 

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 an act of aggression).

(iii) 7 March 2014 Marc Weller at the BBC website (probably the most thorough and concise summary of legal questions listed here)

(iv) 12 March 2014 Boris Mamlyuk at Cambridge Journal of International and Comparative Law Blog (surveys recent writings and gives more attention to Russian voices than other overviews)

(v) 15 March 2014 Simon Chesterman's article from The Straits Times (looks at questions of aggression, armed attack, the legality of secession in international law, and the difference between legality and effectiveness)

(vi) Regularly updated, London School of Slavonic and East European Studies Library provide a list of links to official statements.

II. Characterising Russia's Actions

A)AS AGGRESSION

(i) 11 June 2010 ICC Review Conference Resolution RC/Res.6 on the Crime of Aggression

(ii) 5 March 2014 Ukraine International Law Association memo published in English on EJIL: Talk! (characterises Russia's actions as aggression)

(iii) 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)

1) 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)

(2) 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) 5 March 2014 Eric Posner's blog (scanned English translation of the SOFA)

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

(3) Other Ukraine/Russia Treaties

(i) 3 March 2014 Ukraine Ministry of Foreign Affairs statement "On Violations of Ukraine's Laws in Force and of Ukrainian-Russian Agreements by Military Units of the Black Sea Fleet of the Russian Federation in the Territory of Ukraine" (details how Russia breached three separate sets of treaty obligations)

B) AS AN INTERNATIONAL ARMED CONFLICT

(i) 9 March 2014 Remy Jorritsma at Opinio Juris (argues that this is an international armed conflict, triggering the application of international humanitarian law)

(ii) 19 March 2014 Laurie Blank at Just Security (supporting a low threshold for the application of the law or armed conflict in clashes between Ukrainian and Russian forces)

(iii) 31 March 2014 Marco Roscini at the OUP Blog (on what would be needed for cyber attacks on Ukrainian networks to amount to an "armed attack").

(iv) 16 April 2014 Jose Alvarez at Just Security (on whether the UNGA could authorize sending peacekeepers to separatist parts of Ukraine since Russia would veto a UNSC resolution on the matter)

III. Crimea's Independence and Absorption by Russia

A) BACKGROUND READING

(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) Romain Yakemtchouk in the Annuaire francais de droit international 39 (1993) (IN FRENCH reviews boundary formation in post-Soviet republics; from pp 398-408 looks at Crimea and Ukraine specifically)

(vii) Malcolm Shaw in the British Year Book of International Law Volume 67 (looks at uti posseditis generally, with comments on how it applies to Ukraine and Crimea)

B) CRIMEA'S DECLARATION OF INDEPENDENCE AND SECESSION REFERENDUM

(i) 5 March 2014 John Quigley at the Cambridge Journal of International and Comparative Law blog (an account of the Russians of Crimea's long-term desire for independence, and the CSCE's concerns about ethnic violence)

(ii) 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)

(iii) 9 March 2014 Gaiane Nuridzhanyan at Cambridge Journal International and Comparative Law (on the right to secession generally, but with a discussion of the interplay of Crimean and Ukrainian constitutions)

(iv) 13 March 2014 Peter Roudik at In Custodia Legis (blog of the Law Librarians of Congress) (an overview of Crimean sovereignty from the 15th Century to the present)

(v) 18 March 2014 English translation of President Vladimir Putin's speech to the Duma (providing a justification for Russia's support for Crimea's referendum, and a rebuttal of arguments from Western governments that this was in violation of international law)

(vi) 18 March 2014 Christian Marxsen at EJIL: Talk! (assesses the legality of the DoI and secession in the light of the ICJ Advisory Opinion on Kosovo and the UNGA's Declaration on Friendly Relations).

(vii) 20 March 2014 Jure Vidmar at EJIL: Talk! (differentiates between DoI, referendum, and territorial change and discusses what determines the legality or otherwise of each)

(viii) 20 March 2014 Gregory Fox at Opinio Juris (analysis of the legal nature of the 16th March Treaty between Russia and Crimea by which Crimea is "adopted" into the Russian Federation)

(ix) 16 April 2014 Anne Peters at EJIL: Talk! (a very detailed post on how to assess the compatibility of the Crimea referendum and secession with public international law rather than simply with Ukrainian domestic law, citing the Venice Commission Opinion 762/2014 on the matter)

(x) 6 May 2014 Ilya Somin at the Volokh Conspiracy (points to a Russian government agency which posted an analysis of voting in the Crimea referendum suggesting that no more than 30% of eligible voters voted to join Russia)

C) (NON-)RECOGNITION OF CRIMEAN INDEPENDENCE

(i) 17 March 2014 Anna Dolidze at Opinio Juris (provides a review of recent examples of collective recognition and non-recognition)

(ii) 18 March 2014 Chris Borgen at Opinio Juris (provides an overview of the law on recognition of states, and how it applies to secession which may be distinguished from "separation").

(iii) 27 March 2014 EU statement to the UNGA (video) (EU states that it does not recognize Russia’s absorption of Crimea)

D) PRECEDENTS

(i) 9 March 2014 Rhodri Williams at Opinio Juris and a follow up at Terrus Nullius (comparing Crimea's case with that of the Aaland Islands)

(ii) 17 March 2014 Jack Goldsmith at Lawfare (observing that even though the US took pains to avoid setting a precedent with the Kosovo intervention, the characterization by some commentators of that action as "illegal but legitimate" is influential in comparisons with Crimea)

(iii) 20 March 2014 Jure Vidmar at EJIL: Talk! (argues that Northern Cyprus is a closer analogy to Crimea than Kosovo)

(iv) 20 March 2014 Marko Milanovic at EJIL: Talk! (includes a detailed look at Russia's written and oral arguments before the ICJ in opposition to Kosovo's claim to independence)

(v) 22 April 2014 Anne Peters at EJIL: Talk! (rebuts the argument that Western actions in and attitudes towards Kosovo taint criticism of Russia over Ukraine/Crimea. She distinguishes Kosovo not only on the application of principles but also on the basis that the use of force/intervention in Kosovo are legally separate from Kosovo's secession whereas in Ukraine/Crimea the two acts are inseparable)

IV. Possible Grounds for Legality of Russia's Actions

(i) 5 March 2014 Stefan Soesanto at Lawfare (a five part analysis of Russia's possible justifications)

A) TO SUPPORT CRIMEA'S SELF-DETERMINATION

(See also our Syria Debate Map)

(i) 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)

(ii) 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"

(iii) 3 March 2014 Owen Schaefer at Practical Ethics (looking at procedural requirements for triggering a right to self-determination and considering the consequences of viewing the leaders of Crimea, the present Ukrainian government, and the exiled President as all illegitimate)

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

(v) 10 March 2014 Robert McCorquodale at Opinio Juris (providing an overview of the status of the right to self-determination and the conditions under which it can be invoked)

(vi) 28 March 2014 Lauri Mälksoo at EJIL: Talk! (how Russia's stated foreign policy and leading scholarly writers assert that state sovereignty trumps self-determination claims)

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) 5 March 2014 John Quigley at the Cambridge Journal of International and Comparative Law blog (points out that the Ukrainian Parliament's vote to nullify a law granting official status to minority languages – vetoed by the President – would have violated Russia and Ukraine's Treaty on Friendship, Cooperation, and Partnership, dating from 31 May 1997)

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

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

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

(viii) 17 March 2014 Boris Mamlyuk at Opinio Juris (proposing a fact-finding mission to assess the exact level and nature of the risk of ethnic violence in Ukraine)

(ix) 15 April 2014 UN Office of the High Commissioner for Human Rignts report on Ukraine (finding that, contrary to Russian claims, attacks on ethnic Russians in Ukraine are "neither systematic or widespread")

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 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)

(vii) 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)

(viii) 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)

(ix) 5 March 2014 Grigory Vaypan at the Cambridge Journal of International and Comparative Law Blog (examines the application of the "effective control" and "popular sovereignty" theories)

(x) 10 March 2014 Gregory Fox at Opinio Juris (reviewing the literature and recent case studies, and concluding that the effective control theory is the most reliable way to determine who is the legitimate authority)

(xi) 2 April 2014 Marko Milanovic at EJIL: Talk! (on ousted Ukrainian president Viktor Yanukovych confirming that he did request intervention by Russia)

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) 4 March 2014 Douglas Cox at the Document Exploitation Blog (considers comparisons to the US invasion of Panama)

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

V. Escalations and Implications

(i) For an overview of the Obligation of Non-Recognition of an Unlawful Situation see Martin Dawidowicz's commentary on Article 41 of the Articles on State Responsibility (free content)

(ii) 9 March 2014 Boris Mamlyuk at Cambridge Journal of International and Comparative Law Blog (on Russia invoking force majeure as a response to US sanctions to restrict inspections pursuant to New START Treaty)

(iii) 12 March 2014 Boris Mamlyuk at Cambridge Journal of International and Comparative Law Blog (on a possible Russian view that Ukraine's recent "revolution" amounts to a fundamental change of circumstance which calls into question treaty obligations such as the Budapest Memorandum and the Helsinki Final Act 1975)

(iv) 28 March 2014 Lauri Mälksoo at EJIL: Talk! (how Russia's attempts to alter the settlement following the Crimean War of 1853-1856 by arguing fundamental change of circumstances failed)

(iv) 24 April 2014, Ryan Goodman at Just Security (argues that the UNGA Resolution rejecting the Crimea referendum has been presented as demonstrating overwhelming resistance to Russia's actions, whereas in fact the wording was very tame and support was far weaker than it might have been)

(v) 3 May 2014 John Yoo at the OUP Blog (argues that the UNSC cannot prevent aggression by permanent members, proposed ways to stop treating Russia as a superpower and the setting up of a “Concert of Democracies” to replace the UNSC and which would exclude Russia and China)

(vi) 6 May 2014 Fionnuala Ní Aoláin at Just Security (a round of EU statements and positions, including non-recognition of Crimean independence, sanctions, financial aid to Ukraine, and efforts to reduce dependence on Russia for energy supplies)

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)

(vi) 12 March 2014 Priya Urs at Cambridge Journal of International and Comparative Law Blog (arguing nothing can or will be done about Crimea's secession, not only due to power considerations but the fact that it will be absorbed into Russia robs international law of the reaction of non-recognition)

(vii) 14 March 2014 Julian Ku at Opinio Juris (suggesting that disputed facts more than legal disagreements characterise the current phase of the crisis)

 

Disclaimer: Please note that inclusion in or exclusion from this index does not indicate approval or disapproval of views or reflect a judgement on the quality of argument.

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