1. Introduction
More than two years ago, an event took place which initially caused disbelief among researchers of international law: the Autonomous Republic of Crimea, which was an integral part of Ukraine, suddenly became part of the Russian Federation. On 17 March 2014 the Republic of Crimea proclaimed independence and sovereignty, with Sevastopol as a city acquiring special status.Footnote 1 The decision was taken on the basis of the Declaration of Independence of Crimea and the results of the Crimean referendum, which had taken place on 11 and 16 March 2014 respectively. On the same day (17 March), the President of the Russian Federation signed an executive order on the recognition of the Republic of Crimea as a sovereign and independent state.Footnote 2 On 18 March 2014 an agreement was signed between the Russian Federation and the Republic of Crimea on the accession of the Republic of Crimea and Sevastopol to the Russian Federation, pursuant to which the Republic of Crimea became a federal subject of the Russian Federation.Footnote 3 The Russian side has presented the whole situation as an expression of the Crimean people's right to self-determination.Footnote 4 Explaining its part in the events in Crimea, Russia raised additional legal justifications for its actions, among which were the protection of Russians in Crimea, an invitation by Ukraine, and a threat to regional stability. However, among many other countries, as well as in Ukraine, there is a perception that this purported accession needs to be qualified as an illegal annexation.
Over the past two years several books on the events in Crimea have been published. Among them special attention should be given to Thomas D Grant's Aggression Against Ukraine: Territory, Responsibility and International Law (Palgrave Macmillan, 2015). It is the first and the only book to offer a comprehensive overview of the international law aspects of Russia's involvement in Crimea in 2014. The book explores the Ukrainian and Russian municipal law frameworks in which the Declaration of Independence of Crimea was proclaimed and Crimea became a federal subject of the Russian Federation. It also explores issues of self-determination, unilateral secession, the use of force, non-recognition of unlawful situations and the privileged character of boundaries and territorial regimes under modern international law, as well as the responses of states and international organisations to Russia's actions in Crimea. The author justifiably states: ‘The crisis that has erupted in Ukraine is not a crisis for international law, … the events remain subject to law, and the instruments of law remain at our disposal to address them’ (p 201). Russia's attempts to justify its actions legally has affirmed that states do take international law into consideration in their relations with other states and that they do purport to provide an acceptable legal basis for their conduct. Obviously, this is not the first time in the history of international law that particular states have engaged in ‘twisting the law’Footnote 5 in order to justify their actions under law. The view is widespread that earlier state action in the fields of armed intervention and self-determination issues opened the door to Russia's actions in Crimea.Footnote 6 The book ‘takes a different view’ (p 6). All claims put forward by Russia to justify its actions, including interventions in Kosovo and Iraq, are subjected by the author to a thorough analysis. Indeed, a comparison of Russia's activity with earlier actions proves that there is an important difference: previous interventions ‘have affected a change in the regimes of other States. … None in the modern era has done so with the purpose of seizing territory’ (p 197). However, Russia has used the fact that the law relating to the use of force and self-determination has ‘become more elastic’,Footnote 7 referring to the earlier practices of other states. Russia's actions have not remained without influence on the development of international law.
This review of Aggression Against Ukraine examines some Russian attempts to justify its actions, as well as challenges to international law which were created by the Russian actions. The review will begin with a brief description of the structure and content of the book. Ukrainian and Russian municipal law will be presented in Section 3, followed by an examination in Section 4 of the legal arguments raised by the Russian Federation to justify its actions and characterise Russia's involvement in Crimea in the light of international law. Section 5 concludes the review.
2. Structure and Content of the Book
Thomas Grant's work on this book was ‘instigated by the first formal act of annexation following use and threat of force against a State in Europe since 1945’ (p vii): the annexation of Crimea by the Russian Federation. The book provides a careful, meticulous examination of all aspects of Russia's involvement in Crimea in 2014 in terms of international law, as well as an examination of the Russian and Ukrainian municipal legal orders. It covers probably the widest possible spectrum of legal issues connected with Russia's involvement in Crimea.
The book is structured in three general parts, each divided into chapters. The introduction offers preliminary remarks and the purposes of the book. The first part, entitled ‘Aggression against Ukraine’, consists of three chapters: ‘“Glory and Outstanding Valor”: The Seizure of Crimea’, ‘The Use of Force against Ukraine’, and ‘Non-recognition’. This part offers readers an overview of both the Russian and Ukrainian municipal law frameworks in which the seizure of the Ukrainian territory by the Russian Federation took place. Issues of international law are addressed with an emphasis on the problems of self-determination. Russia's legal arguments to justify its actions are enumerated and discussed. Finally, the reactions of states and international organisations to the annexation of Crimea are highlighted and compared with responses to similar situations involving the use of force.
The second part of the book, ‘The Territorial Settlement and International Law’, focuses on the issues of territorial settlements and boundaries. Here, four chapters may be found: ‘The Privileged Character of Boundaries and Territorial Regimes’; ‘Responsibility, Use of Force, and Boundaries’; ‘Use of Force and Other Values’; and ‘Boundaries, Territory, and Human Rights’. The topic of boundaries and territorial settlements in international law is examined thoroughly. Moreover, this part focuses, in the first place, on the response that is required when a state has used force to effect a putative change in a territorial settlement and, second, on the response to the use of force when values other than territorial settlement are affected. This part also describes the relationship between boundaries, territories and human rights.
The final part of the book, ‘Domestic Order, International Order, and Mechanisms for Change’, consists of one chapter, ‘The West's Interventions and Russia's Argument’, which refers to earlier interventions in Kosovo (1999) and Iraq (2003). This part examines Russia's claim that some putative breaches of international law by Western states excuse a new breach.
The number of issues considered in the book is plentiful. A detailed examination of each is hardly possible in one essay; this review therefore will address just some of those issues.
3. Russian Actions in Light of Municipal Legal Orders
Grant indicates that the transfer of territory from one state to another requires, in addition to an international agreement, legislative acts in two municipal legal orders. Consequently, the book presents the municipal acts of both Russia and Ukraine related to the annexation of Crimea (pp 16–21).
3.1. The Ukrainian Legal Order
The Republic of Crimea seceded from Ukraine and became part of the Russian Federation on the basis of a referendum. Analysis of applicable law in Ukraine confirms that the referendum in Crimea remains contrary to Ukrainian legislation and should be considered illegal. In considering the Ukrainian legislation, Grant draws attention to the opinion of the Venice Commission on whether the referendum complies with Ukrainian law, which submits that ‘on the plain text of the Ukrainian Constitution in English translation, it is hard to see how a different conclusion could be supported’ (p 17). The original text of the Ukrainian Constitution affirms this statement. Also, under Article 3.3(2) of the Ukrainian Law ‘On the National Referendum in Ukraine’, any territorial changes of Ukraine must be subject to a national referendum.Footnote 8 Ukraine's position was clearly determined in the Order of the Acting President of Ukraine of 14 March 2014 ‘On Reversal of the Decision of the Supreme Council of the Autonomous Republic of Crimea of 11 March 2014 “The Declaration of Independence of the Autonomous Republic of Crimea and Sevastopol City”’.Footnote 9 On 15 April 2014, the Verkhovna Rada (the parliament) of Ukraine adopted the law ‘On Securing the Rights and Freedoms of Citizens and the Legal Regime on the Temporarily Occupied Territory of Ukraine’.Footnote 10 This law established a specific legal regime for the territory of Crimea and Sevastopol, according to which the following are considered occupied territories: the Autonomous Republic of Crimea, Sevastopol, internal waters and territorial waters around the peninsula, the air space above them, and the exclusive economic zone.Footnote 11 Moreover, the events in Crimea preceding the adoption of the Declaration of Independence were also contrary to the applicable Ukrainian legislation – namely, the appeal by the Prime Minister of the Autonomous Republic of Crimea of 27 February 2014 and the appointment of a new Prime Minister and a new government. Earlier on the same day, the building of the Council of Ministers and the Supreme Council of the Autonomous Republic of Crimea (the parliament of Crimea) was seized by an unknown group of armed people in military uniforms. The extraordinary session, attended by a minority of deputies, was convened and the change of Prime Minister was adopted. Later, the appointment of a new Prime Minister was declared incompatible with the Ukrainian Constitution and legislation. According to the Order of the Acting President of Ukraine of 1 March 2014 ‘On Prime Minister of the Autonomous Republic of Crimea’, this appointment violated, among others, Article 136 of the Constitution of Ukraine and Article 37 of the Constitution of the Autonomous Republic of Crimea.Footnote 12 In appointing the Prime Minister, the Supreme Council of the Autonomous Republic of Crimea should have acted in consultation with the President of Ukraine. Obviously, both the appointment of the Prime Minister on 27 February 2014 and the subsequent creation of the local government were unlawful actions.
3.2. The Russian Legal Order
The legal basis under domestic Russian law for the annexation of Crimea requires greater attention. The annexation is based on Russian municipal legal acts, which are enumerated and well explained by Grant (pp 19–21).Footnote 13 The possibility of incorporation of a foreign state in whole or in part into the Russian Federation is foreseen in Article 65 of the Constitution of the Russian Federation and the Federal Law, enacted pursuant to the Constitution, ‘On the Procedure of Admission to the Russian Federation and the Formation Within It of New Constituent Territories’. According to Article 4.2 of that Law:
The admission to the Russian Federation as a new entity of a foreign country or its part is carried out by mutual agreement of the Russian Federation and of the foreign state in accordance with international agreement on the admission to the Russian Federation as a new entity of a foreign country or its part … signed by the Russian Federation with the foreign country.
The Law also provides the following procedure for admission of the new entity to the Russian Federation. The foreign state takes the initiative for its accession to the Russian Federation in whole or in part; the President of the Russian Federation notifies the State Duma (the lower house of the Russian parliament) and the Federation Council (the upper house of the Russian parliament) of this initiative; the Russian Federation and the foreign country sign an international agreement, following which the President of the Russian Federation requests the Constitutional Court to verify the compatibility of the agreement with the Constitution of the Russian Federation; if the Constitutional Court confirms compatibility, the agreement is submitted to the Federal Assembly for ratification, together with a draft federal constitutional law on the admission to the Russian Federation of the new entity. As Grant describes, the actions taken by the Russian authorities formally complied with the relevant municipal legislation. However, several questions arise. First, the recognition of the Republic of Crimea as ‘a sovereign and independent state’ by the President of the Russian Federation is not compatible with the outcome of the Crimean referendum. The issue of the state's independence was not even put to a vote during the referendum. Questions posed in the referendum can be found in Part I of Grant's book (p 16):
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1) Do you support the reunification of the Crimea with Russia as a subject of the Russian Federation?
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2) Do you support the restoration of the Constitution of the Republic of Crimea as of 1992 and the status of the Crimea as a part of Ukraine?
Second, as mentioned above, according to Russian law a foreign state takes the initiative for accession to the Russian Federation, and this foreign state is required to sign an accession agreement. In order to comply with this order, therefore, and with Crimea being an integral part of the state of Ukraine, an initiative on the part of Ukraine was required. However, the Russian Federation stated that in the outcome of the referendum the Republic of Crimea became an independent state and, as such, it was recognised by Russia; thus the international agreement was signed with the state known as the Republic of Crimea. This is a disputable position since, as seen above, the questions raised in the referendum did not refer to the issue of independence, but only to joining the Russian Federation. For the Russian municipal law the latter question turned out to be the greatest challenge, as the Russian authorities declared that the whole process of accession would be clear, quick and legally correct.Footnote 14 Before the adoption of the Decree ‘On the All-Crimean Referendum’ by the main legislative organ of Crimea and the announcement of the Declaration of Independence of Crimea, attempts were made in Russia to amend its legislation so that the admission of Crimea into the Russian Federation appeared legitimate according to Russian law. On 28 February 2014 the political party, A Just Russia (Spravedlivaya Rossiya), submitted to the State Duma of the Russian Federation a draft law ‘On Amendments to the Federal Constitutional Law “On the Procedure of Admission to the Russian Federation and the Formation within it of New Constituent Territories”’.Footnote 15 Amendments to Articles 4 and 6, inter alia, have been proposed. According to the proposed regulations in Article 4:
If it is impossible to conclude an international agreement in the absence of an effective sovereign state power in a foreign country … an admission of the part of a foreign state into the Russian Federation can be carried out following a referendum, which is held in accordance with the laws of a foreign state on the territory of that part of the foreign state, if the issue of its accession to the Russian Federation has received approval, or at the request of the public authorities of the part of [the] foreign state.
It was also proposed to add the following point to Article 6:
The initiators of the proposal to admit the part of the foreign state into the Russian Federation as a new subject in the case specified in paragraph 2.1 of Article 4 [amendment proposed to Article 4 – added by the author of this review essay] of this Federal Constitutional Law are public authorities of this part of the foreign state.
This draft law was submitted to the State Duma with an explanatory note,Footnote 16 which stated:
Seizure of power by [a] group of people on [the] Maidan in Kiev … is not lawful and Ukrainian regions in which the majority of the population is Russian-speaking citizens are deprived of state protections in their own country and looking for ways to defend their independence referring primarily to Russia.
According to the note:
In international practice, there have been cases of the accession of one state to another without the conclusion of an international treaty. Moreover, there is no requirement to conclude such an agreement with a foreign country in international law. … Conversely, imposing requirements of a treaty agreement of the entire state (Ukraine) to the people of a specific region (Crimea) in the process of self-determination would be contrary to the principle of self-determination of international law.
However, within a few days the draft law was retracted by the authors. The very fact of submitting such a draft law by a political party with a majority in the parliament and from which the president originates indicates that preparations for the annexation of Crimea had started earlier than the whole situation played out. Initially the intention was to amend the municipal law to ensure the compatibility of the accession activities with the Federal Law ‘On the Procedure of Admission to the Russian Federation and the Formation Within It of New Constituent Territories’. However, if that was the case, the explanation of Russian activity in Crimea would have been far more difficult at the international law level. It would have been difficult to explain how Crimea, which is an autonomous republic within Ukraine, was admitted into the Russian Federation without the consent of Ukraine. If the territory has already declared independence, even if through a questionable procedure, it is easier to justify its admission to the Russian Federation under law. One has to agree with Nico Krisch that ‘Russia does care about its international audience (at least a bit), and knowing that international law matters for that audience it has chosen a less open form of invasion’.Footnote 17 It has to be stated that during the process of Crimea's accession to the Russian Federation the sequence of events and the events themselves were artificially created in an attempt to ensure their compatibility with Russian law.
At this point one should note that Russia has referred to historical arguments in an attempt to justify its actions. During Iraq's invasion of Kuwait, historical arguments were rejected by the United Nations, as well as by member states, among them the Russian Federation. However, the impact of using historical arguments by a state in respect of international practice could be difficult to contemplate. Grant explains this in detail using China as an example: as he stresses, ‘China has an abundance of historical claims’ (p 200). Some constituent units of the Russian Federation were ‘assigned to Russia from China under two of the unequal treaties’ (p 200). Historical arguments, once used by the Russian Federation for the annexation of territory, may support historical arguments which China could use in relation to Russian territories. However, actions of the Russian government are not considered among Russian society in the context of law and historical integrity, but in terms of national interests. According to Russian lawyers, the majority of citizens in Russia (as well as Russian lawyers) are not concerned about possible violations of international law by their country.Footnote 18
4. Russian Actions in Light of International Law
Obviously, as Grant stresses, ‘[t]o describe the events leading to the annexation of Crimea and the annexation itself as developments in a national legal order is incomplete’ (p 22). The Russian Federation has argued that all legal acts connected with Crimea's independence and its admission into the Russian Federation were lawful acts under rules of international law. All Russian legal arguments to justify its activities in Crimea are analysed in depth by the author in terms of modern international law. Numerous judgments of international courts, documents of international organisations, and bilateral as well as multilateral treaties are discussed to illustrate that Russian activities in Crimea are unlawful according to international law.
4.1. Self-determination
The first international law issue to be discussed in the book is that of self-determination. This choice seems obvious in that the main Russian argument, before turning to the use of force, was that the separation of Crimea from Ukraine was an act of self-determination (pp 22–23). The Crimean Declaration of Independence invoked the right of people to self-determination arising from the UN CharterFootnote 19 and a number of other international documents, as well as the International Court of Justice (ICJ) advisory opinion of 22 July 2010 on the question of whether Kosovo's unilateral declaration of independence was in compliance with international law.Footnote 20 The reference to the ICJ advisory opinion is completely incomprehensible. At first, as Grant correctly points out, the question to the Court was a narrow one: whether a declaration of independence was prohibited under general international law (p 24). The advisory opinion neither provides a view on whether Kosovo had the right to secede according to international law; nor does it consider the question of the existence of a right of secession in general, or even the legal consequences of a declaration of independence. For this reason, the ICJ advisory opinion is often criticised for having left uncertain the scope of secession and self-determination.Footnote 21 Based on a brief analysis of the norms of international law – which, according to the ICJ, do not contain any rules prohibiting a unilateral declaration of independence – the Court did not find such a unilateral act to be illegal. However, the ICJ noted that there are situations in which a unilateral declaration cannot be considered compatible with the norms of international law, namely when it is ‘connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (ius cogens)’.Footnote 22 In the case of Crimea, the adoption of the Declaration of Independence was certainly associated with the use of force by the Russian Federation. For the majority of states and international lawyers the use of force was obviously unlawful,Footnote 23 whereas Russia used legal arguments to justify its military intervention and further annexation of Crimea.
Before discussing those Russian arguments, the concept of remedial secession should be mentioned as a measure of last resort when the right to self-determination cannot be implemented within a given state.Footnote 24 Numerous authors have pointed out that the Russian authorities used remedial arguments to explain the situation in Crimea,Footnote 25 but, as stressed by Grant, ‘[t]he evidence of such a right in international law is far from complete’ (p 26). The doctrine of remedial secession has a very weak basis in practice. The most recent instance before the case of Crimea in which the right to remedial secession was invoked is the case of Kosovo. Grant provides a list of the states which have invoked the existence of a right to remedial secession under contemporary international law, and points out that most states that participated in the Kosovo advisory proceedings before the ICJ rejected the concept of remedial secession. In that discussion the position of the Russian Federation, which stated that secession may be authorised under certain conditions, is quite interesting. According to the Russian Federation's statement in the Kosovo proceedings:Footnote 26
Those conditions should be limited to truly extreme circumstances, such as an outright armed attack by the parent state, threatening the very existence of the people in question. Otherwise, all efforts should be taken in order to settle the tension between the parent state and the ethnic community concerned within the framework of the existing state.
Grant demonstrates that there was no information to indicate that the Ukrainian authorities had participated in any gross human rights violations against Crimeans, particularly against ethnic Russians. If anything, it is since the annexation of Crimea by the Russian Federation that human rights protection in Crimea has been severely curtailed.Footnote 27 Grant concludes that if one applies the requirement of exceptional circumstances to the situation in Crimea, and especially the ‘extreme circumstances’ under which the Russian Federation accepted a claim for remedial secession, then the concept of remedial secession is not applicable to the case of Crimea (pp 28–33).
4.2. The Use of Force
Particular attention should be paid to Grant's analysis of Russia's arguments to justify the use of force against Ukraine. They are as follows (p 44):
(a) the Black Sea Fleet agreements furnished a basis for Russia's presence in Ukraine; (b) dangers faced by Russians abroad justified the intervention; (c) events in Ukraine threatened regional stability; (d) humanitarian principles or the ‘responsibility to protect’ was applicable in Ukraine; (e) Ukraine invited Russia to intervene; (f) the self-determination of Russians in Crimea was under threat and could only be protected with external assistance; (g) Western powers had intervened and so counter-intervention was lawful; (h) Russia had a right to resort to reprisals for breaches by Ukraine.
Grant's detailed analysis of Russian actions in the light of modern international law, which is based on numerous judgments and acts of international law, proves that Russia's legal arguments are hardly credible and are questionable. Some of these arguments are discussed below.
4.2.1. Invitation
International law allows for the use of force at the request of the authorities (invitation) of the state concerned. The Russian Federation forwarded to the Security Council the request made by the deposed president of Ukraine, Viktor Yanukovych, to use Russian Federation armed forces to protect stability in Ukraine (p 50). This argument makes no sense. First, based on the case of Somalia v Woodhouse Drake & Carey (Suisse) SA and Others,Footnote 28 Grant states that Yanukovych cannot be treated as the president of Ukraine (pp 51–52). Second, even assuming that the deposed president was empowered to request the use of Russian Federation armed forces to protect stability in Ukraine, his decision would violate Ukranian municipal law. According to Article 8.2 of the Law of Ukraine ‘On the Order of Admission and Conditions of Stay of the Armed Forces of Other States on the Territory of Ukraine’,Footnote 29 ‘[a] decision of [the] Ukrainian President on admitting units of armed forces of other states onto the territory of Ukraine … shall be approved by the Verkhovna Rada of Ukraine’. Finally, as Grant states, ‘[t]he scope of an invitation … is limited by general international law. An invitation could not be a license to carry out a breach of jus cogens rules’ (p 52). In the case of Crimea, even if the Russian Federation had acted at the request of the deposed president, it consequently annexed part of the territory of Ukraine. One could draw attention to the fact that the Crimean authorities also appealed to the President of the Russian Federation for assistance in securing peace and stability in the territory of Crimea.Footnote 30 However, international law restricts the possibility of intervention in support of the opposition or rebels, as was confirmed by the ICJ in 1986 in the Nicaragua case.Footnote 31 As mentioned above, the Crimean head of executive was appointed through a violation of Ukraine's municipal law and was not recognised by official authorities of Ukraine. Therefore, the argument that force was used by invitation is not credible in the case of Crimea.
4.2.2. Humanitarian Intervention or ‘Responsibility to Protect’
The next argument used by the Russian side to justify the use of force refers to Russia's self-perception as the protector state (and the need to fulfil protection duties). The author is correct in stating that the annexation also could not be justified by the need for humanitarian intervention or the ‘responsibility to protect’ (p 50).
Grant quite properly quotes the UN Report of the High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’, according to which ‘[r]esponsibility to protect … would involve collective determinations that “the most fundamental of human rights” were at stake’ (p 50). Moreover, according to the UN General Assembly Resolution 60/1 of 24 October 2005, UN member states could:Footnote 32
[t]ake collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
Most interesting in this context is Russia's position regarding ‘responsibility to protect’, which was presented at the 67th session of the UN General Assembly in 2012:Footnote 33
With respect to the responsibility of States to protect their population from genocide, war crimes, ethnic cleansing and crimes against humanity, we are guided by the provisions of the corresponding section of the 2005 World Summit Outcome Document. In our view, the UN SC mandate is crucial for implementation of this concept … We believe that any broad interpretation of the term ‘responsibility to protect’ is counterproductive, and we warn against ill-considered and hasty attempts to arbitrarily apply this concept to country-specific cases with the use of force. The main thing is that responsibility to protect should not be used as a pretext for changing undesirable political regimes.
As noted above, there was no evidence that crimes such as those mentioned by Russia had been perpetrated against Crimeans in Ukraine. Moreover, two years before the events in Crimea, the Russian Federation insisted that if any such crimes occur, a UN Security Council mandate is crucial in that matter to start such an operation. In the Concept of the Foreign Policy of the Russian Federation of 12 February 2013, the significance of the UN Security Council mandate was also stressed.Footnote 34 In particular, the use of military force outside the framework of the UN Charter has undergone severe criticism and condemnation by the Russian Federation.Footnote 35 In the case of Crimea, however, Russia decided to act unilaterally, ignoring its earlier position.
4.3. Territorial Integrity and the Privileged Character of Boundaries
A significant part of the book under review is dedicated to the issue of territorial integrity and the privileged character of boundaries. The author considers numerous documents ‘in which boundaries and territorial regimes have been the subject of specific guarantees’ (p 103) to which Russia and Ukraine are parties. All relevant documents cited in the book (pp 104–16) affirm that the forcible change of boundaries and territorial acquisition resulting from the threat of use of force are inadmissible under modern international law. Grant states that ‘[t]he law applicable to all States in all regions forbids the forcible change of boundaries under valid and invalid claims alike’ (p 116). Accordingly, the Russian Federation's actions in Ukraine in February and March 2014 were in violation of applicable norms of international law. Such activity could be qualified as aggression. According to Article 1 of UN Resolution 3314Footnote 36 (p 105):
Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.
During consultations in the UN Security Council over the Iraqi invasions of Kuwait, the Russian Federation stated that it:Footnote 37
was under the impression that Baghdad was still not fully aware of the seriousness of what Iraq had done. For the first time since the Second World War one State had occupied and annexed another sovereign State Member of the United Nations, violating its obligations under the Charter and the fundamental principles of international law.
This was over twenty years ago; the Russian actions in Crimea have the same characteristics, but Russia rejects all claims. Moreover, it argues that the interventions in Kosovo (1999) and in Iraq (2003) have led to the fact ‘that few, if any limits now exist that would constrain its own acts of intervention’ (p 171).
4.4. Previous Western Interventions
The book also reviews Russia's claims regarding the interventions in Kosovo and Iraq, mentioned above. Grant provides in-depth analyses of the legal arguments used by states during and after the interventions in Kosovo and Iraq, as well as Russia's position during those interventions (pp 171–97). He points out that in the case of Kosovo, Russia acknowledged that a humanitarian crisis had led to the intervention and took part in the international process of the transition in Kosovo and in the negotiations which lasted over eight years.
In 2009 Russia defined the recognition of Kosovo as premature (p 180). The situation in Crimea was rather different: there was neither a humanitarian crisis, nor was there any international involvement. Intriguingly, despite the fact that in the referendum there was no question regarding the independence of the entity, the ‘new state’ was recognised by the Russian Federation on the day after the referendum, and the Russian side did not define this recognition as premature. Grant cites writers, including the observation ‘that Russia's position in respect of Crimea was a volte-face’, and agrees with them, developing their observations (pp 180–82). As for the case of Iraq, all statements of the Russian Federation cited by the author prove that in Russia's opinion the intervention in Iraq in 2003 was unlawful (pp 183–85). However, in 2014 Russia's actions in Crimea also proved to be unlawful. So why did the Russian Federation change its point of view? As the author explains, it did not: rather, it maintains that ‘Western States’ conduct was “illegitimate” in Iraq …, and that Western States cannot oppose a standard against Russia that they themselves have not lived up to’ (p 183). Russia did not make efforts to equate the intervention in Iraq with the intervention in Ukraine; rather, the conduct of Western states in Iraq was used to justify Russia's conduct in Ukraine.
The argument that earlier actions of states, mainly those of the US and Western Europe, on a broad interpretation of the standards of international law, have authorised those of Russia, is not completely without merit. The author refers to certain international lawyers who hold such a position (p 8). The allegation of twisting international law appears in the works of many writers.Footnote 38 A thorough analysis of earlier cases relating to international intervention proves the author's thesis that ‘none in the modern era’ has used armed intervention ‘with the purpose of seizing territory’ (p 197). It has to be agreed with the author that the annexation of Crimea ‘marks a potential turning point’ (p 200) in international law.
The classification of Russia's actions as aggression and annexation may have huge legal implications for the international community. States and international organisations are under a legal obligation not to recognise the changed international status of Crimea because its purported annexation is unlawful. Official statements by states and international organisations cited by the author unquestionably affirm that they did not recognise the annexation of Crimea (pp 64–83). According to the author, ‘[t]he response [of states] did … set the stage for a long-term legal policy’ (p 63). This reaction, however, differs from the reactions to the Iraqi invasion of Kuwait, which had an almost instant effect. The case of Iraq is different from that of Crimea to the extent that the superpowers were on the same side in the assessment of the legal consequences.
5. Conclusion
The events covered by this book do not inspire us with optimism as, once again, one of the superpowers has felt itself to be superior to the others. Nonetheless, Aggression Against Ukraine: Territory, Responsibility and International Law offers a comprehensive and analytical overview of the relevant modern rules of international law in the field of territorial integrity, self-determination and the use of force. The book presents international norms and the practice of states and international organisations, as well as judicial and arbitral practice in those fields. Grant's book explores themes which have a practical significance for statehood issues. The findings formulated in the book pose a challenge for the development of international law. This is certainly indispensable reading not only for international lawyers but also for a wider audience interested in modern international conflicts.
