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  • Kiara Dsouza

Subversion of International Law: Russia’s Recognition of Donetsk and Luhansk as Independent States

This article is authored by Kiara Dsouza, a Student of Law at NALSAR University of Law.

Introduction

Russia’s military action against Ukraine which began on February 24, 2022, has been widely condemned by the international community as violative of the fundamental principles of international law. The conflict traces back to April 2014, when separatists gained control over the Donbas region with the help from Russia. The subsequent ‘referendum on independence’ on the 11th of May resulted in the declaration of the People’s Republic of Luhansk and the People’s Republic of Donetsk as quasi-independent entities by the separatists. This was condemned as violative of Ukraine’s sovereignty and territorial integrity and consequently declared illegal, remaining unrecognised by all states except for Russia. Months later, a peace deal, now known as the Minsk Protocols,was signed between Ukraine, Russia, the Organization for Security and Co-operation in Europe (OSCE) and the pro-Russia rebels in September 2014 and later, in February 2015, to end the fighting in the region.


However, following Russia’s illegal recognition of Donetsk and Luhansk as ‘independent states’and its ratification of“Treaties of Friendship, Cooperation and Mutual Assistance” with the leaders of those regions in 2022, a war was inevitable.Such recognition of these entities as “states” is violative of the principles of the territorial integrity of states. Unilateral Secessions are looked upon with suspicion in the international community. Remedial secession is still widely debated in international law, and even if permitted such as in the case of Quebec, it is only as a last resort when there are multiple human rights abuses, and internal self-determination had been denied.


This pieceexplores the illegality of the recognition of Donetsk and Luhansk under international law. It looks at the right of self-determination, secession and the laws on statehood, specifically in light of the Donbas region to show that Russia’s actions of recognition violate the fundamental principles of international law and that the regions of Donetsk and Luhansk do not have a right to form separate states, nor are they presently recognised as such by the international community.It further touches upon these concepts in international law, exploring the current status of these entities and the ramifications of recognition.


The Right to Self Determination

The right to self-determination is found in the charter of the United Nations and in multiple international treaties. It denotes the legal right of peoples to determine their fate in the international system.

The right of self-determination includes secession and independence from the parent state, which is known asexternal self-determination and granting a‘people’ of the region their right to “choose their political status and pursue their economic, social and cultural development,” within the parent state itself, which is internal self-determination.However, as noted by eminent authors such as Malcolm Shaw, state practice does not support the use of the self-determination principle by certain groups to secede from already independent parent states. such as in the present situation, whereUkraine is an existing, independent state, and therefore, the principle to unilaterally secede will not apply to Donetsk and Luhansk.


Accordingly, the principle is compatible with the idea of territorial integrity, since it ceases to apply in cases of states that have already achieved independence from the colonial rule, except, arguably, in extreme situations. In light of this, while the Minsk Accords can be seen as an attempt to provide for internal self-determination, external self-determination is not a unilateral right that a ‘people’ can invoke at will.


Secession and Territorial Integrity

The territorial integrity of states is a fundamental principle of international law. The right to self-determination, as held by the Canadian Supreme Courtin the Reference Re Secession of Quebec case, is to be exercised “within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states.”The Court held that a right to secession arises in the most extreme cases, under “carefully defined circumstances,”when ‘people’ are under colonial domination or alien subjugation, where they are denied meaningful access to the right to self-determination within the state.According to the author, while unilateral secession may not be absolutely prohibited,it is highly limited to the extent that it does not impact the territorial integrity of sovereign and independent states.This isembodied in the ‘safeguard clause’ of the Friendly Relations Declaration, which explicitly states that the exercise of a right to self-determination shall not be construed asauthorizing or encouraging any action which would dismemberor impair, totally or in part, the territorial integrity or politicalunity of sovereign and independent States conductingthemselves in compliance with the principle of equal rightsand self-determination of peoples as described above, and thuspossessed of a government representing the whole peoplebelonging to the territory without distinction as to race, creed,or colour.


Russia claimed that Ukraine’sdenial of the right to self-determination to Russian speakers, and grave crimes such as genocide against minorities in the Donbas regionwere grounds for the unilateral right to secession of the ‘people’ of the Donbas region. The recognition of Donetsk and Luhansk as independent states was condemned by the UN Secretary-General as violative of the territorial integrity and sovereignty of Ukraine, and inconsistent with the Charter of the United Nations.The Ukrainian government has also denied all claims of genocide and the same was pronounced by the International Court of Justice (“ICJ”). Thus, Russia’s argument for unilateral secession does not conform to the principles of international law and the people of the Donbas region do not have a valid right to external self-determination by way of secession, and continue to be part of the territory of Ukraine.


Recognition as a criterion for Statehood

Recognition is the act by which an entity is recognised as a state. The legal criteria for statehood is found in Article 1 of the Montevideo Convention of 1933, which is considered to be the “core of the concept of statehood.”According to the Convention, in order to qualify as a state, itmust have (a) a permanent population, (b) a defined territory, (c) government and (d) the capacity to enter into relations with other states. Recognition by other states is how a government may demonstrate its capacity to enter into relations with other states as well as its political independence.



However, the lawfulness of the creation of a state is important. Without this, an entity may not be legally considered a state. Such lawfulness must comply with principles of international law, especially those of territorial integrity, non-interference and legitimate use of self-determination. Violation of peremptory norms such as the prohibition on the use of force, or fomentation of the insurrection by another state, renders declarations of independence illegal. The creation of the “People’s Republics” of Donetsk and Luhansk results in a violation of these very principles of international law. Furthermore, Donetsk and Luhansk do not meet the requirements of statehood. People of the region are citizens of Ukraine and the only legitimate government is the Ukrainian Government. Further, these entities have not been recognised by other states or international organisations.


Violation of peremptory norms and the Duty of Non-Recognition

The ability to recognize new states and territories is limited in international law through the duty of non-recognition, where States have a legal obligation not to recognise a State or territory, in certain situations. For example, States are under a duty of non-recognition in cases of illegal intervention and fomentation of the secession of part of a State. Non-recognition is a part of the substantive obligation of respect for peremptory norms of international law. Recognition by other Statesis therefore unlawful where an entity does not meet the required criteria for statehood, the criterion being a peremptory norm of international law.


In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ found that the construction of a wall by Israel around the Occupied Palestinian Territories was a violation of fundamental international law principles, and noted the positive obligation on all States to not recognise an illegal situation. Moreover, the ILC Articles on State Responsibility lay down a specific obligation of non-recognition in Article 41. The obligation, as noted in the commentaries to the Draft Articles, are particularly important in cases where a State’s breaches of jus cogens norms include situations resulting from the use of force to acquire territory. Article 40 (2) has noted that States shall not recognize a situation which has been created by a serious breach of a peremptory norm of international law as lawful.


As noted by Crawford, the principle of non-intervention in the internal matters of a State also include the principle of the prohibition of the use of force, which is a peremptory norm of international law.Entering into force in 1965, theDeclaration on the Inadmissibility of Intervention in the Domestic Affairs of States emphasised that Statesdo not have the right to intervene directly or indirectly, in the internal or external matters of another state and condemned armed intervention against the personality of States. It also stated that the use of force constituted a violation of the principle of non-intervention. This was reaffirmed in the Declaration on Friendly Relations in 1970.


Furthermore, Article 2 paragraph 4 of the Charter of the United Nations prohibits the “threat or use of force against the territorial integrity or political independence of any State or any other manner inconsistent with the purposes of the United Nations”. The Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations has reiterated this principle, deeming it to be binding on all States. This principle is now perceived to be reflective of customary international law. The illegality of declarations of independence stemming from the unlawful use of force by a state has also been confirmed by the ICJ in its advisory opinion on the unilateral declaration of independence in respect of Kosovo.


Illegality of Russia’s Recognition

Since the entities of Donetsk and Luhansk have failed to meet the basic criteria for statehood as aforesaid, Russia’s recognition of these regions as independent States violates the sovereignty of Ukraine and breaches fundamental principles of international law such as those of territorial integrity, non-intervention, as well as the prohibition on the use of force enshrined in the Charter of the United Nations and other resolutions, and repeatedly reaffirmed by the ICJ.


Further, in cases which entail the use of force or military action such as Russia’s invasion of the Donbas region, the element of coercion is present and is violative of the principles of non-intervention. Russia’s intervention has been ongoing since April 2014. In such a situation, therefore, the recognition of Donetsk and Luhansk would be tainted by the use of force and coercion and the recognition would be manifestly illegal. Russia’s recent recognition to justify the direct invasion of Ukraine has made this a serious breach of the prohibition of the use of force, triggering the obligation of collective non-recognition as discussed above, which has found continued acceptance in international law.


Russia has not only breached these fundamental principles and norms, but also specific agreements such as the Budapest Memorandum, which, although non-binding,still guaranteesthe territorial sovereignty and integrity of Ukraine. Russia has also breached the Minsk Accord, which was endorsed by the UNSC’s resolution in 2022.The entities of the Donbas region have not been recognised as States by any other nation, nor by any international organisations. In fact, in March 2022, the UN General Assembly, supported by 141 States adopted a resolution which reaffirmed the sovereignty of Ukraine and termed Russia’s recognition as violative of the principle of territorial integrity and the Charter of the United Nations, going so far as to call upon Russia to reverse its decision and revoke the recognition.


Conclusion

Two separatist entities now constitute ‘States’ for Russia, and this is, in principle, adecision, having broad ramifications. Russia will now be able to enter into bilateral agreements with these“States”, as envisaged by the Vienna Convention on the Law of Treaties. Russiahas alreadyentered intotreaties on friendship, cooperation and mutual aid with these entities. Moreover, Russia,following the act of recognition,no longer considers itself bound by rights and obligations intrinsic to Ukrainian statehood such as principles of non-intervention in internal affairs and the preservation of territorial integrity. Russia has already begun an armed attack against Ukraine under the guise of aiding these ‘States’ in self-defence under Article 51 of the UN Charter. Since Donetsk and Luhansk do not meet the criteria for statehood and are not States in international law, these territories of the Donbas region remain under Ukraine’s sovereignty. Recognition by Russia has therefore violated the territorial integrity and sovereignty of Ukraine. As Lauterpacht has noted, recognition in situations such as this are an “international delinquency”.

Despite its denials, Russia has been involved in the armed conflict by providing weapons and other support to the rebels. The declaration of independence is thus, accompanied by violations of jus cogens norms of non-intervention and also the prohibition of the use of force. Consequently, Russia’s recognition of the territories of Donetsk and Luhansk as independent States should be regarded unlawful, and these regions are to remain a part of Ukrainian territory. It thereby follows from this that any ‘military operation’ in order to aid these regions in securing ‘independence’ would be manifestly illegal.

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