An Illegal Territorial Regime? On the Occupation and Annexation of Crimea as a Matter of International Law

Azarova, Valentina

doi:10.1007/978-94-6265-222-4_3

Valentina Azarova^3,4

1971 Accesses
2 Citations

Abstract

What happens to the international law of occupation when the de facto administrator not only subjectively rejects its applicability, but maintains the occupation with the intention to acquire or transform territory? What effects does it have on the de facto administrator’s status? And what implications on the welfare of the civilian population? Is it appropriate for international law to regulate such situations as belligerent occupations? Russia’s occupation of Crimea exemplifies the regulatory challenges created by contemporary situations of occupation qua annexation, which this chapter argues are a form of illegal territorial regime. To address them, the chapter explores the place of occupation law and its mutually-reliant relationship between the international norms of conflict management (jus in bello), which includes occupation law, and those of conflict prevention and resolution (jus ad bellum). It argues that such illegal situations are incommensurable with the legal category of belligerent occupation in international law: they necessitate the diligent application of the jus ad bellum to appropriately regulate occupying states seeking territorial aggrandisement and foreign domination. The operation of the consequence of invalidity in such cases means that third party States and international organisations are made to undertake the enforcement and protection of the civilian population under the aegis of the foreign power.

Post-Doctoral Fellow, Center for Global Public Law, Koç University Law School, Istanbul. Koç University, Sariyer, Istanbul 34450, Turkey. She is also a strategic and legal advisor to the Global Legal Action Network (GLAN), a collective that works to challenge exploitative transnational dealings, and has over a decade of experience working with and advising international and local rights groups. The author owes thanks to Bill van Esveld, Szymon Zaręba and Antal Berkes for their insights and comments on earlier drafts. All errors remain the author’s own. Email: vazarova@ku.edu.tr.

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Notes

1.
Cyprus v. Turkey, Application No. 25781/94, judgement of 10 May 2001, para 96.
2.
Lord L.J. Mansfield in Morris v Pugh (1761) 3 Burr. 1242, 1243; quoted by Lon L. Fuller, Legal Fictions (Stanford University Press 1967) at 51.
3.
Zhu Xi’s ethical philosophy advocated “the need for people, as prospective moral agents, to notice the fine details, the distinguishing features of particular situations and to fashion on that basis the most discerning, appropriate response.”, see Thompson 2015.
4.
Other situations of unlawfully prolonged occupation referenced throughout the chapter include: Western Sahara, Palestine, Golan Heights, Abkhazia and South Ossetia, Transnistria, northern Cyprus, and Nagorno-Karabakh.
5.
The term was coined by Ronen 2011 based on criteria of legality for territorial regimes noted by Crawford 1979, which include principally the prohibition on the use of force to acquire territory including for the creation of a new state.
6.
Drawing on Thomas Kuhn’s idea of incommensurability, see Bird 2011.
7.
Wrange 2015.
8.
See Wilde 2009.
9.
Vienna Convention on the Law of Treaties 1969 1155 U.N.T.S. 331, Article 31(3).
10.
Azarova 2018.
11.
Wright 1961.
12.
I use this term to refer to situations of occupation maintained through illegal force in pursuit of the territory’s acquisition or secession. While occupation law applies equally to all situations of occupation, the pursuit of territorial acquisition renders the continued presence of the occupying state in the territory unlawful. See Azarova 2017a.
13.
See for the definition of an ‘unlawful territorial situation’ Milano 2006, at 5–10.
14.
Ronen 2011, at 1.
15.
Ibid., Milano 2006, at 5–10.
16.
On the processes of status demotion, Gross 2017, Chapter 5.
17.
Wrange 2015. It is not merely a situation governed by IHL, but also one that triggers the jus ad bellum norms it violates.
18.
Costelloe 2017.
19.
See for a sequence of events concerning the annexation of Crimea Tancredi 2014. See for a different perspective on the distortive effects of occupation law Sayed 2014.
20.
Contemporary occupation law is authoritatively conceived of as a legal framework drawn from both IHL and IHRL; Arai-Takahashi 2009, Part II. Benvenisti 2013, at 102–105.
21.
See, on the international law of territoriality, Shaw 1982, at 61–91.
22.
I owe this term, which denotes the mutual dependence and cross-fertilisation between the specialised law of occupation and other regimes of international law, to Basak Çali.
23.
Ohlin 2015.
24.
Tancredi 2014.
25.
Orakhelashvili 2003, at 19–56.
26.
Not all puzzles that could be tackled in the old paradigm will be solved by the new one—this is the phenomenon of “Kuhn loss”.
27.
See for a similar case of dilution the abolition of slavery through international law, which formally marked the abolition of such a cardinal abuse, i.e. a breach of a peremptory norm of international law, yet also occurred in such a way that the safeguards and disincentives for its recurrence have subsequently weakened; McGeehan 2011, 436–460.
28.
Korman 1996.
29.
ICJ 2004, pp. 187–189, paras 127–131 and pp. 191–192, para 134. See also ECHR, Loizidou v. Turkey, Judgment, Application No. 15318/89, paras 54, 57; ECHR, Al-Skeini and others v. United Kingdom, Case No. 55721/07, Judgment, 7 July 2011, paras 138–142; ECHR Chiragov v. Armenia, Application No. 13216/05, judgement of 16 June 2015. See on human rights in prolonged occupation, Koutroulis 2012, 165–205. See, on the particularities of the interaction and the shortcomings of the application of IHRL in occupied territory, Gross 2015.
30.
Arai-Takahashi 2012, 51–80; Megret 2006.
31.
Carcano 2015.
32.
Human Rights Council, Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, UN Doc. A/HRC/34/L.41, adopted on 21 March 2017 (by 36 votes in favour, including the Netherlands, Germany, Switzerland and Belgium).
33.
An occupying power that rejects the ousted sovereign’s rights, necessarily also rejects the normative underpinnings of occupation law; Ben-Naftali et al. 2005, at 551–614.
34.
Ben-Naftali 2012, at 129–200.
35.
See, on support to secessionist movements in contravention of international law, Borgen 2007, at 477–534.
36.
As others in this volume discuss [??].
37.
Such conduct is proscribed by General Assembly Resolution 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc. A/RES/25/2625, adopted 24 October 1970.
38.
See, for the interventions of the United States (5), and Australia (10), Security Council Verbatim Record, UN Doc S/PV.7124, 1 March 2014.
39.
The Council of the European Union, Foreign Affairs Council, Council Conclusions on Ukraine, 3 March 2014, www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/141291.pdf. Accessed 10 April 2017.
40.
While notably muddying its own arguments with irredentist historical claims to title over the territory. See, on the justifications put forward by the Russian government, Tancredi 2014, 10–13.
41.
See for a reproach of the viability of this distinction in situations of occupation, Giladi 2008, at 246–301.
42.
General Assembly Resolution 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960.
43.
Vienna Convention on the Law of Treaties 1969, Article 31(1).
44.
Hampson F (2011) Military Necessity, Crimes of War. www.crimesofwar.org/a-z-guide/military-necessity/. Accessed 22 April 2017.
45.
Contemporary recognition of belligerency is different to its traditional use to denote the political status of the non-state actor; Azarova and Blum 2015.
46.
The occupying power’s is based on the balancing between humanity and necessity in Laws and Customs of War on Land, 18 October 1907 (Hague Regulations 1907), Article 43.
47.
Israeli authorities have used this as a catch-all phrase to justify its stone quarrying in excess of what is otherwise permitted by occupation law, and to build roads for the benefit of both Israeli settlements and Palestinian villages. See HCJ 2164/09 Yesh Din v. The Commander of the IDF Forces in the West Bank, judgement of 26 December 2011; HCJ 281/11 Head of Beit Iksa Village Council v. Minister of Defense et al., Judgment, 6 September 2011, available in Hebrew. elyon1.court.gov.il/files/11/810/002/m12/11002810.m12.pdf. Accessed 13 May 2017. See also Kretzmer 2012, at 207–236.
48.
Occupation law assumes and mandates that the occupying state permits the operation of local authorities, courts and laws; e.g., Articles 56 and 64 of Geneva Convention IV. See Dinstein 2009, Chapter 5.
49.
Human Rights Watch (2015) Rights in Retreat: Abuses in Crimea.
50.
Ohlin 2015.
51.
Darcy and Reynolds 2010, at 211–243.
52.
Geneva Convention IV, Article 29.
53.
Geneva Convention IV, Articles 64 and 47. Sassòli 2005.
54.
Insofar as it is aimed at absolving the occupying power of its paramount responsibility; Dinstein 2009, para 134.
55.
See e.g., the practice of the ECtHR who considers the likes of the TRNC as ‘subordinate authorities’; Loizidou v. Turkey (preliminary objections), 23 March 1995, para 62; Cyprus v. Turkey, Application No. 25781/94, paras 75–80; Ilaşcu and Others v. Moldova and Russia, Application No. 48787/99, paras 314–316.
56.
Article 27 GC IV.
57.
Ronen 2011.
58.
Milano 2006, chapter 2.
59.
Geiss 2015, at 425–449.
60.
Giladi 2008.
61.
The application of IHL in isolation from the jus ad bellum is often justified on the basis that doing so is necessary to maintain some authority even over outlawed belligerents in the context of a war of aggression; Bugnion 2003, at 4–16.
62.
Giladi rightly maintains that the legitimate objective that the occupying power may pursue in the occupied territory cannot “be justified (or justify vesting in the occupant legal powers) in normative terms if occupation endangers international peace and security.” Giladi 2008.
63.
Orakhelashvili 2003, at 26–32.
64.
ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts 2001, Article 43.
65.
Orakhelashvili 2003.
66.
Chen 1951, at 424.
67.
Orakhelashvili 2003, 26; Rozakis 1976, at 24; Rozakis 1974, at 150–193.
68.
Orakhelashvili 2003, at 29.
69.
Ibid.
70.
Hague Regulations 1907, Article 42. See also the New commentary to Article 2 common to GCs.
71.
Crawford 2012a, b, at 595, at fn. 37; Costelloe 2017.
72.
Cyprus v. Turkey, Application No. 25781/94, Just Satisfaction Award, 20 May 2014, para 4.
73.
Ibid., para 24.
74.
Security Council Resolution 687 (1991), UN Doc. S/Res/687, adopted 8 April 1991, para 16,
75.
Bothe 2015, para 4. See also Krieger 2016; Sztucki 1974, at 27.
76.
Crawford 2012a, b, at 594.
77.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion, ICJ Rep. 16, 1971, para 56.
78.
ILC Special Rapporteur, Gaetano Arangio-Ruiz cited in Talmon 2005.
79.
See on the challenges to the enforcement of compensation, Satkauskas 2003.
80.
Azarova 2017b.
81.
Crawford 2012a, b, at 591.
82.
ICJ Namibia, at 16.
83.
Crawford 2012a, b, at 598–9; Brownlie 1963, at 422; Orakhelashvili 2003, at 37.
84.
Chen 1951, at 431.
85.
Vienna Convention on the Law of Treaties 1969, Article 29. See also Costelloe 2016. See the case law of the European Court of Justice on the EU’s agreements with Morocco: C-104/16 Council v. Front Polisario, Judgment, Grand Chamber, 21 December 2016; C-266/16 Western Sahara Campaign UK v. Commissioners for Her Majesty’s Revenue and Customs, 27 February 2018.
86.
See on the threat of effectiveness, Milano 2006, Chapter 5.
87.
A declarative role traditionally entrusted to international and regional institutions, which have in turn been increasingly deployed to serve political ends. Krieger 2016, at 21 et seq.
88.
Crawford 2012a, b, at 600.
89.
It bears recalling that IHL takes a conflict management approach to struggles against colonial domination. Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), adopted 8 June 1977, Article 1(4).
90.
General Assembly, Question of Namibia, UN Doc. A/RES/S-14/1, 20 September 1986.
91.
Gross 2015.
92.
See on the consequences of classification Bowker and Star 1999; Douglas and Hull 1992.
93.
Bowker and Star 1999, at 10–11.
94.
See for a discussion of the elements of the factual test in Article 42 of the Hague Regulations 1907, Dinstein 2009, chapter 2.I.
95.
Nicolosi 2011, at 165–187.
96.
Arai-Takahashi 2012.
97.
While occupation law is preoccupied with the need to manage and restrain violence, the law on the use of force is concerned with bringing the ongoing cause of the violence to an end. Arai-Takahashi 2012, at 51.
98.
Azarova 2018.
99.
Crawford 2012a, b, at 603.
100.
Thurer 2006, at 13–15.
101.
See for an analysis of CPA status and responsibility in light of Iraq transfer of authority, Carcano 2015, at 147–158.
102.
See, e.g., Hammarberg 2013.
103.
ICJ on referendum for independence based on illegal force; Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion, ICJ Reports 2010, para 84.
104.
See review of relevant case law, Gross 2015.
105.
Hammarberg 2013.
106.
Afsah argues that occupation law is not the tool for introducing democratic changes in Iraq; Afsah 2006.
107.
Wilde 2008.
108.
Morgenstern 1951, at 291.
109.
See on exclusion as enforcement, Hathaway and Shapiro 2011.
110.
Office of the High Commissioner for Human Rights, Report on the Human Rights Situations in Ukraine 16 February to 15 May 2016, para 19.
111.
A de facto annexation signifies a state of complete dependence; Talmon 1999, at 534.
112.
Since local government authorities in Crimea were the subject of wholesale transformation before the formal annexation, the same ‘secessionist’ authorities became the local government of the territory following annexation.
113.
McHugh J (2015) Putin Eliminates Ministry of Crimea, Region Fully Integrated Into Russia, Russian Leaders Say. International Business Times, 15 July. Under Russian law, all decisions delivered by the Crimean branches of the judiciary of Ukraine up to its annexation remain valid. Including sentences (for “encroaching on Ukraine's territorial integrity and inviolability”) for pre-2014 calls for an incorporation of Crimea into Russia; Pro-Russian Activist Falls On Hard Times In Annexed Crimea, Radio Free Europe, 16 January 2016.
114.
Human Rights Watch 2015. Shapovalova N (2016) The Situation of National Minorities in Crimea following its Annexation by Russia. European Parliament www.europarl.europa.eu/RegData/etudes/STUD/2016/578003/EXPO_STU(2016)578003_EN.pdf. Accessed 10 April 2017.
115.
See also Fraleigh 1949.
116.
Morgenstern 1951, at 317.
117.
Ibid., 306.
118.
Acts that the occupant is entitled to execute produce legal results; Morgenstern 1951, at 296 citing Foro Italiano, 1947, ii, at 133.
119.
That would mean placing the vulnerable population at the whims of the law of the occupant, since it is the occupant who is concerned with punishment for disobedience; Morgenstern 1951, at 296.
120.
By July 2015, 20,000 Crimeans had renounced their Ukrainian citizenship; de Waal 2015.
121.
See, e.g. they are barred from holding government and municipal jobs; Stewart P (2014) Ukraine human rights ‘deteriorating rapidly’. Al Jazeera English, 3 December 2014 www.aljazeera.com/news/europe/2014/12/ukraine-human-rights-201412210270208204.html. Accessed 10 April 2017. Muravalev M (2014) Disappearing Crimea's anti-Russia activists, Al Jazeera English, 4 December 2014. www.aljazeera.com/indepth/features/2014/12/disappearing-crimea-anti-russia-activists-201412110405525656.html. Accessed 10 April 2017.
122.
See also in this volume, Bowring 2017, Chapter 2.
123.
See e.g., one of three complaints lodged before the ECtHR, Ukraine v. Russia I (no. 20958/14) in March 2014, alleged that the civilian population on the territory of Ukraine was at risk of measures by Russia that might threaten their life and health. Human Rights Watch 2014. Wrange 2015, at 24.
124.
The March 2014 law “On the Acceptance of the Republic of Crimea into the Russian Federation and the Creation of New Federal Subjects – the Republic of Crimea and the City of Federal Significance Sevastopol,” required any permanent resident of Crimea who held Ukrainian citizenship to undergo a process of declaring intent to maintain Ukrainian citizenship, after which all Ukrainian passport holders who resided in Crimea were deemed Russian citizens. HRW Rights in Retreat (2014).
125.
See for the Namibia exception, ICJ Namibia 1971, para 122–124. ECHR Loizidou extended recognition transactions and acts such as the registration of various civic acts, e.g. marriages, births and deaths. An important limitation to the principle of nullity may also bear on its effects for instance on bona fide purchasers, in specific cases that should be examined by the returning sovereign; Morgenstern 1951, at 309.
126.
Caglar v. Billingham (Inspector of Taxes) [1996] STC (SDC) 150, para 121; cited in Crawford 2012a, b, para 113.
127.
Costelloe 2017, at 343–378.
128.
Ronen 2011.
129.
Crawford 2012a, b, paras 48 et seq.
130.
Milano 2007.
131.
See Lagerwall 2016.
132.
Milano 2007.
133.
Milano refers to the ‘monist view’ of the relationship between international and domestic legal systems, on which this assumption is based; Milano 2006, at 135. See also Nollkaemper 2010.
134.
European Commission, Commission Guidance note on the implementation of certain provisions of Regulation, Notice, (EU) No. 833/201425 September 2015.
135.
See Information Note to EU business operating and/or investing in Crimea/Sevastopol., SWD (2014) 300 final/3, 10 June 2015.
136.
It remains unclear whether the concept of responsibility (in our case erga omnes) is a decisive driver behind such decisions, Nollkaemper 2017.
137.
For the law on countermeasures intended to bring the state into compliance with international law, ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts 2001, Articles 48–49. Basic Principles on the Use of Restrictive Measures (Sanctions), 10198/1/04 REV 1, PESC 450, 7 June 2004; Guidelines on the implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy, 15 June 2012, 11205/1. See also Wrange 2015, at 47–9; Public Defender of Georgia 2017.
138.
Thompson 2009, 307 et seq. See also Bradford, Ben-Shahar 2012, at 376 et seq.
139.
Lauterpacht 1948, at 431; Elsuwege 2009, para 20.
140.
Milano 2014.
141.
Agamben 2006, at 4.
142.
Human Rights Watch 2016.
143.
On the role of the UN in rights protection in situations of military occupation, Roberts 2005, at 458 et seq.
144.
McMahan 2011. See also Chehtman 2015, at 25 et seq.
145.
See, on the grey areas in the interaction between occupation law and human rights law, Campanelli 2008, 653–668.
146.
Ratner 2005, at 709.
147.
See e.g. Ministry of Foreign Affairs of Georgia 2016.
148.
Gross 2015.
149.
It has however avoided discussing the status and obligations of de facto authorities. Ronen 2013, at 42.
150.
See, among recent cases on the obligations of occupied states: Sargsyan v. Azerbaijan Application No. 40167/06, judgement of 16 June 2015; Mozer v. The Republic of Moldova and Russia, Application No. 11138/10, judgement of 23 February 2016.
151.
According to Cullen and Wheatley this is in line with the subsidiary of the Convention; Cullen and Wheatley 2013, 711–2. See also Solomou 2010, at 633.
152.
Tomuschat et al. 2009. See also Lagerwall 2014.
153.
Ronen 2013, 43–4; Schoiswohl 2001, at 45 et seq.
154.
Human Rights Watch’s Europe and Central Asia director called on Abkhazia to respect human rights: Williamson H (2011) Abkhazia must raise its game on human rights. The Guardian, 19 November. See also Hammarberg 2013. The European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) conducted visited and reported on detention conditions in Abkhazia and Transnistria: https://www.coe.int/en/web/cpt/georgia and https://www.coe.int/en/web/cpt/republic-of-moldova?desktop=true.
155.
Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No. 2), House of Lords (England), Judgment of 18 May 1966,43 ILR 23, 66. Oguebie and Another v. Odunwoke and Others, Nigerian Supreme Court, Judgment of 19 April 1979, 70 ILR 17, at 20 et seq. These and others are cited and discussed in Schoiswohl 2001, at 73.
156.
This unsatisfactory approach is discussed by Cullen and Wheatley 2013, at 692.
157.
See Murray 2016.
158.
Chen 1951, at 429. See also on ‘acquired rights’, Berkes 2015; Frowein 2013.
159.
Milano 2007.
160.
Schoiswohl 2001, at 88–9.
161.
Brown 1950, 627 et seq. Cf. using a doctrine of implied mandate, Schoiswohl 2001, at 74.
162.
Peterson 1997, 68–71; van Essen 2012, 48; Buchanan 1999, at 46–47.
163.
Draper 1983, at 264.
164.
The logic of treating non-state actors as duty-bearers irrespective of the legitimacy or legality of their political pursuits is not new: Sivakumaran 2009, at 489–513.
165.
Del Mar and Twining 2017, ix–xi. See also Gross 2017.
166.
See on the scope of non-recognition as an international duty; Talmon 2005. See also Crawford 2012a, b. See on obligations of abstention as community interests, Krieger 2016.
167.
See for a critique of the thesis of cooperation, Hakimi 2017.
168.
See, e.g., on the danger of the return of the ‘civilising mission’ by other means, Wilde 2008. See also, on the use of human rights as pretext for transformative measures, Fox 2008.
169.
Charlesworth 2002.
170.
Gross reproaches occupation law for enabling such practices in modern time, Gross 2017, Chapter 1.
171.
See also the invasion of Kuwait after the UN resolution, Charlesworth 2002, at 389, 392.

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Koç University Law School, Center for Global Public Law, 34450, Sariyer, Istanbul, Turkey
Valentina Azarova
Koç University, 34450, Sariyer, Istanbul, Turkey
Valentina Azarova

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Azarova, V. (2018). An Illegal Territorial Regime? On the Occupation and Annexation of Crimea as a Matter of International Law. In: Sayapin, S., Tsybulenko, E. (eds) The Use of Force against Ukraine and International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-222-4_3

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DOI: https://doi.org/10.1007/978-94-6265-222-4_3
Published: 09 September 2018
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