This post is based on the presentation delivered by its author at Maastricht University on 16 March 2022, on the occasion of the academic event organised by the European Law Students Association (ELSA).
During the last three weeks, we have had the chance to read lots of information about the situation in Ukraine. Given the nature of the situation – an international armed conflict – and the gravity of the conflict in terms of the scale of the military operations and the high number of victims reported, much has been said about the conflict. For us, international lawyers and law students, the interesting thing is that many questions raised in the media and in social media concern international law: whether international law is really law, whether States can have recourse to armed force whenever they deem fit, whether anyone or anything can be a lawful military target in times of armed conflict, etc. True, raising questions is fine, but taking the time necessary to examine such questions in detail is even better. However, neither the media, nor social media devotes much time or space to such endeavor, which seems to be in keeping with so many other aspects of life in times of modern liquidity.
In this post I will adress the issues of recognition of States and the legality of the use of armed force in international relations, in light of the situation in Ukraine.
Having said that, I would like to make my substantive points right now: one, Russia’s recognition of Luhansk and Donetsk as States is unlawful; two, the use of force by Russia against Ukraine is also unlawful; and three, Russia is internationally responsible towards Ukraine, which generates legal consequences not only for Russia, but also for other States.
The recognition of Luhansk and Donetsk as States is unlawful
In March 2014, Russia occupied the Ukrainian region of Crimea, claiming it was necessary to protect the rights of Russian citizens residing there. In the same month, Russia annexed Crimea, after Crimeans voted to integrate with Russia in a controversial referendum (see here). Two months later, pro-Russian separatists in Donetsk and Luhansk declared themselves as independent States (see here).
The armed conflict between the Ukrainian government and the separatists have killed thousands of people since April 2014. Even if Russia has denied its involvement in the armed conflict, Ukraine and NATO have reported the presence of Russian troops near Donetsk, as well as cross-border military attacks from Russian territory (see here).
Russia recognised Donetsk and Luhansk as independent States on 21 February of this year, while the armed conflict between the Ukrainian government and the separatists was ongoing and the possible outcome of the conflict was still uncertain. In fact, only approximately one third of the territories of Donetsk and Luhansk were under the effective control of the separatists (see here). Both separatist regions have been completely dependent on Russia since 2014: Russia has distributed approximately 800,000 passports among residents of Donetsk and Luhansk; it has provided considerable financial support to the authorities of the separatist regions; these authorities adopted the Russian ruble as the official currency of the territory under their control; etc. (see here).
So, against this background, are Donetsk and Luhansk really States?
The criteria for statehood are laid down in the Montevideo Convention of 1933 and in customary international law. Neither Russia nor Ukraine is a State party to the Montevideo Convention, but they are bound by customary law, like any other State.
According to the Montevideo Convention and customary law, a State should possess a permanent population, a defined territory, a government, and the capacity to enter into relations with the other States (generally interpreted by scholars as meaning independence of the other States) (see here).
It was evident for everyone, including Russia, that Donetsk and Luhansk did not meet the criteria for statehood at the time of Russia’s recognition: only a fraction of these regions was under the effective control of the separatists; and the separatists were in complete dependence of Russia.
Moreover, under international law, minority groups do not have the right to secede from the parent State, without the latter’s consent. In this situation, Ukraine has not consented to the secession of both regions.
Donetsk and Luhansk are thus not States under international law.
So, what are the legal consequences of the Russian recognition of the two separatist regions as States, under international law?
The recognition of a State by another simply means that the recognising State accepts the international legal personality of the other State, with all the attending international rights and obligations (see here), such as the right of sending and receiving diplomatic legations, treaty-making power, and immunity from domestic jurisdiction.
Recognition of States is an act of free will (see here); it is a sovereign act of States. However, recognition is lawful only if it is not made in breach of an international obligation.
States shall respect the sovereign equality of States – including their territorial integrity and political independence – and they are bound to not intervene in the internal affairs of another State (see here). These obligations have become part of customary international law (see here).
As noted above, Russia’s recognition was made when the separatists did not have effective control over a substantial part of the territories of the separatist regions, and when the possible outcome of the conflict was uncertain. In so doing, Russia’s recognition was premature and it was thus a breach of the principle of non-intervention (see here) and of the principle sovereignty equality of States.
For these reasons, Russia’s recognition of Donetsk and Luhansk constitutes an internationally wrongful act.
Why did Russia recognise both regions as States?
States do not admit violations of international law, at least not in public. To avoid international responsibility, they will typically deny the alleged facts, they will allege different facts, or they will put forward legal justifications.
Russia was obviously aware of the illegality of the act of recognition, but it needed to recognise those regions as States, in order to rely on the right of collective self-defence, as a legal justification for the upcoming armed attack on Ukraine.
The use of armed force against Ukraine by Russia is unlawful
As you probably know, the prohibition of the threat or use of armed force is a general principle of international law and one of the cornerstones of international relations.
And as you probably also know, there are two exceptions to the prohibition of the use of armed force: authorisation of the UNSC and the right of individual or collective self-defence (see here).
Russia claims to be using armed force in defence of Donetsk and Luhansk (see para. 15 of the submission to the ICJ by Russia and the Address by the President of the Russian Federation annexed to the submission, here).
Clearly, the argument is unpersuasive.
According to the UN Charter and customary law, the right of self-defence is triggered when an armed attack occurs against a State.
However, given that Donetsk and Luhansk are not States, they cannot exercise a right that they do not have and Russia cannot exercise the right of collective self-defence, because both separatist regions do not hold the right of self-defence in the first place.
Therefore, Russia’s conduct constitutes a breach of the prohibition of the use of armed force in international relations. In light of the scale of the military operations carried out by Russia and the number of victims so far, the use of armed force by Russia is so serious as to constitute an armed attack in the sense of the UN Charter and customary law, triggering the right of self-defence by Ukraine.
Also, given the nature of the armed attack, namely a military invasion of Ukraine, the armed attack by Russia amounts to an act of aggression (see here). It is thus unsurprising that last week the UNGA qualified the Russian invasion as an act of aggression (see here). States consider aggression so serious that the prohibition of aggression has become a rule of jus cogens, that is, a peremptory norm of international law from which no State can derogate (see here).
Legal consequences for Russia and third States
To sum up, Russia is internationally responsible towards Ukraine for the breach of the principle of non-intervention in the internal affairs of another, the principle of sovereign equality of States, and the prohibition of aggression. Consequently, considering the customary law of State responsibility (see here):
One, Russia is bound to revoke its unlawful recognition of Donetsk and Luhansk as States.
Two, Russia is bound to withdraw its armed forces from the internationally recognised borders of Ukraine (that is, including eastern Ukraine) and to refrain from any further unlawful threat or use of armed force against Ukraine.
Three, Ukraine is entitled as the injured State to invoke the responsibility of Russia for the breach of those international obligations.
Four, any State other than Ukraine is entitled to invoke the responsibility of Russia with respect to the breach of the prohibition of aggression.
Five, any State other than Ukraine has the right to adopt retorsion measures to ensure the cessation of the act of aggression, such as the broad range of economic and diplomatic sanctions adopted so far (see e.g. here).
Finally, the preceding considerations are without prejudice to any issue of individual responsibility under domestic or international criminal law. Think, for example, of the possible exercise of jurisdiction by domestic courts over war crimes, crimes against humanity, and the crime of aggression (see here), or the exercise of jurisdiction by the ICC over war crimes or crimes against humanity (see here).
Fabián Raimondo is Associate Professor of Public International Law (Maastricht University) and the Executive Editor of Maastricht Blog on Transitional Justice.
