Real vs. fake international law
Donetzk, Luhansk, Zaporizhzhia, Kherson, Crimea, and Sevastopol remain part of Ukraine
Today, Russia announced the annexation of four oblasts of Ukraine. International law has long outlawed conquest and the fake referenda that were held recently, like the ones held in 2014, were neither free nor fair. They have no legal value.
Indeed, even if there had been a unilateral referendum, i.e., a referendum that would have been really organized by the local communities instead of by Moscow, and without agreement from Kyiv, declaring independence would have been possible only under a very narrow set of circumstances that have been recognized as part of customary international law. The current customary international law has been explained by Canada’s Supreme Court in the landmark case Reference re Secession of Quebec. Among the requirements is the inability of the people in question to exercise their self-determination within the existing state. Short of a situation similar to that which led to the independence of Kosova, there is virtually no room for unilateral declarations of independence against the wishes of the state from which a territory and people want to secede.
These conditions have never been met in no part of Ukraine. The right to self-determination has been safeguarded sufficiently. In particular, Ukraine’s adherence to international human rights treaties such as the two Covenants and the European Convention on Human Rights contributed to a steady improvement with regard to the protection of human rights, including the rights of linguistic minorities. No part of Ukraine has fulfilled the Quebec requirements. The unilateral secession of different parts of Ukraine was only a tool, abusing concepts of international law in order to give Russia’s conquest a (thin, fragile and meaningless) veneer of legality. Even if the so-called referenda had not been forms of coercion but the result of actual secession movements, which was never the case, they would have been without any legal effect. The so-called declarations of independence have no legal value.
For several generations, Russia has produced some excellent international legal scholars. It has to be assumed that the government in Moscow is fully aware of the legal situation but has chosen to deliberately reject the existing international legal order.
At the same time does the current government in Moscow use the language of international law, contrasting this term with the concept of a rules-based international order. Public international law creates an international order based on rules. The distinction and contrast that is postulated by Moscow do not exist. International law contains values. What some governments, including the current ruler in Moscow, appear to want to return to is an international legal order in which international law only regulates between states but where the behaviour of rulers towards their own citizens is not regulated by international law. These days are long gone. Public international law is not only a set of contracts between kings but the result of the deliberative process of international law-making that involves the international legal community as a whole. The way in which Moscow describes the idea of a rules-based legal order is incompatible with the reality of international law as it exists today. The best way to combat Moscow’s wrongful allegations, but also to hold those who are in positions of power, no matter where, is to educate people about the reality of international law. Dissemination of knowledge about international humanitarian law, the international legal norms that apply in armed conflicts, is actually part of the obligations of states under international humanitarian law. Sharing knowledge about international law, with a particular focus on current and emerging issues, is the core of the mission of this substack.