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«Madeline Ollivier A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago October 2015 ...»

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Russia’s Resurgence

An international legal analysis of Russia’s intervention in

Ukraine

Madeline Ollivier

A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at

the University of Otago

October 2015

To my family and friends for their unwavering support;

and to Professor Kevin Dawkins for his generosity of time and insightful guidance.

i

Table of Contents

Geographical Overview

Introduction

Chapter 1: The Collapse of Ukraine-Russia Relations

A. Ukrainian Identity and Demography

The Emergence of Ukraine

Independent Ukraine Looks to the West

The Strategic Significance of Crimea

Russia’s Annexation of Crimea

B.

The 2013-2014 Euromaidan Protests

The Takeover of Crimea

The Expansion of Russian Involvement in Ukraine

Chapter 2: Russia’s Breaches of International Law

A. Russia’s Forcible Intervention in Crimea

Russia’s Use of Force in Ukraine

B.

The Prohibition on the Use of Force

Exceptions to the Prohibition on the Use of Force

C. Further Violations of Multilateral Agreements

The Helsinki Final Act

The Commonwealth of Independent States

The Budapest Memorandum

The Friendly Relations Declaration

The NATO-Russia Founding Act

D. Contravention of Principles of International Law

Customary Principle of Non-Intervention

Respect for the Independence and Territorial Integrity of States

The Principle of Non-Recognition of Territorial Acquisition

E. Breach of Bilateral Agreements with Ukraine

The Friendship Treaty

Agreements Permitting Access to the Black Sea

F. International Response to the Crisis

Chapter 3: Escalation of the Crisis

A. Russia’s Regional Ambitions

Frozen Conflicts in Former Soviet Republics

a. Georgia

b. Moldova

ii Russian Presence in eastern Ukraine

B. Involvement by NATO

NATO-Russia Relations

Vulnerable NATO Members

a. The Baltic States

b. Poland

C. Limits of the International Community

Paralysis of the UN

The International Court of Justice

Conclusions

Bibliography

–  –  –

Figure 1: Map of Ukraine modified from The World Factbook 2013-2014 Central Intelligence Agency (2013).

Figure 2: Map of Georgia modified from The World Factbook 2013-2014 Central Intelligence Agency (2013).

iv Introduction Ukraine is a state without a unified national identity. Its citizens are divided between forging economic and security alliances with the West on the one hand and retaining a close relationship with Russia on the other. This political division culminated in the Euromaidan protests in Kiev in 2013-2014, where Ukrainian citizens demonstrated against President Viktor Yanukovych’s decision to abandon an agreement with the European Union (EU). For many Ukrainian citizens, this announcement was seen as a sudden policy change which favoured the re-establishment of closer economic ties with Russia, at the expense of relations with the West.

The protests escalated into violent clashes and Yanukovych fled from office in February 2014.

It was during this political collapse that the Russian Federation (Russia) militarily intervened in Crimea, a strategically positioned peninsula within the inviolable territory of Ukraine.

Russia’s intervention led to its annexation of Crimea, undermining Ukraine’s sovereignty and in gross violation of international law. In the wake of the annexation, rebel separatist movements broke out in eastern Ukraine with the backing of Russian support. Russia’s continual support of rebels and failure to return Crimea to Ukraine has led to the imposition of targeted sanctions, condemning Russia’s breaches of international law. Russia has maintained de facto control of Crimea since the annexation and considers both Crimea and its port city of Sevastopol to be incorporated regions of Russia. Moscow’s role in the Ukraine crisis revealed a geopolitical agenda which caught the international community by surprise. Its use of force to change political order within Ukraine exposed Russia’s resurgence, posting a threat to the entire post-Soviet Cold War security order.

This dissertation considers the international legality of Russia’s annexation of Crimea and its military intervention in eastern Ukraine. The first chapter will examine the events leading up to Russia’s recent intervention in Ukraine, focusing on the cultural and historical relationship between the two states. The shared history between the states accounts for Ukraine’s struggle to develop a unified national identity and the eventual collapse of its central government.

The second chapter will assess the legality of Russia’s forcible annexation of Crimea and its support of pro-separatist rebels in eastern Ukraine. These actions have been in gross violation of international law. Russia’s involvement in Ukraine’s sovereign territory has been in clear breach of the United Nations (UN) Charter and the peremptory norm of customary international law against the use of force. Accordingly, Russia has also violated several multilateral agreements and bilateral agreements with Ukraine, defying general principles of international

–  –  –





Since the annexation of Crimea, Ukraine has remained determined to pursue stronger relationships with Western organisations, signing agreements with both the EU and the North Atlantic Treaty Organisation (NATO). Russia considers this to be a direct threat to its security interests, as encirclement by NATO members would prevent Russia from being a dominant influence in the region. The third chapter will therefore examine possible implications for neighbouring states if Russia begins to exercise revisionist power. Russia has a history of intervening in former Soviet Republics and supporting pro-Russia separatist regions. Its irredentist support for rebels has created frozen conflicts in these regions, enabling the territories to act outside the sovereign control of their parent state. The continued Russian presence in eastern Ukraine has sparked concern that it will become another frozen conflict in the region. Moreover, with Russia’s outright annexation of Crimea, the international community fears that Russia may be embarking upon a form of neo-imperial expansionism. As many states in the region are already members of NATO, the third chapter will also examine the possibility of intervention by NATO. Unless the conflict escalates and threatens a member state, NATO will not become involved in the crisis. However, to allay concerns from members NATO has reinforced its collective defence strategy in the region, initiating the most significant reinforcement of its defence strategies since the end of the Cold War.

The international community’s only effective means to prevent an escalation of the crisis is through the use of sanctions. These targeted sanctions aim to facilitate a resolution to the crisis before NATO is compelled to intervene. Powerful international organs like the UN or the International Court of Justice (ICJ) remain unable assist Ukraine, largely due to Russia’s permanent membership on the UN Security Council. It is currently unclear whether Russia’s resurgence of dominance will persist, or if it will collapse under punitive sanctions. However, it is clear that the longer it takes for a resolution to be found, the more at risk the stability of the world order becomes.

2 Chapter 1: The Collapse of Ukraine-Russia Relations This chapter traces Ukrainian history to reveal the long-standing interconnection between Russia and Ukraine. The shared history between the two states is instrumental in understanding the motives behind Russia’s annexation of Crimea and continued intervention in eastern Ukraine. Sharing a long geographic border and Slavic culture,1 the histories of Russia and Ukraine have been intimately linked ever since Russia first asserted control over Ukraine in the 17th century. Despite gaining independence from Russia in 1991, Ukraine has remained affiliated both economically and politically with Russia, while a significant ethnic Russian population lives in Ukraine today.2 Two regions which are heavily populated by ethnic Russians and Russian speakers are the Crimean peninsula in southern Ukraine and the Donbas region in eastern Ukraine.3 These regions are at the centre of the Ukrainian crisis.

Relations between Ukraine and Russian came under significant strain during Viktor Yushchenko’s Presidential term from 2005-2010. Yushchenko made several policy decisions which moved Ukraine’s alliance towards Western organisations at the expense of Russia.

Russia considered this policy shift to be counter to its economic and security interests.

Although Ukraine subsequently appeared to strengthen its ties with Russia during Yanukovych’s Presidential term, Yanukovych was forced from office amidst the Euromaidan protests. Russia used Ukraine’s political instability to its advantage by striking and annexing Crimea while Ukraine was without a central government. This ensured Russia’s protection of its security interests through safeguarding its access to the Black Sea. As a result, Ukraine lost its sovereign control over Crimea. In addition, eastern Ukraine has also become subjected to Russian intervention as pro-separatist rebels have been supported by Russia.

1 Slavic denotes a branch of the Indo-European ethno-linguistic group whose peoples share cultural traits and historical backgrounds.

2 Note that this dissertation considers developments up until 1 October 2015.

3 The Donbas is a region in eastern Ukraine which comprises of the Donetsk and Luhansk provinces.

3 A. Ukrainian Identity and Demography As a borderland state which was historically controlled by neighbouring powers, Ukraine inherited an equivocal sense of national identity and diverse demographic.4 The high proportion of ethnic Russians living in Ukraine reflects Ukraine’s history as a Republic within the Soviet Union and demonstrates how Ukraine has become politically divided. Ukraine is split between citizens who want to forge an independent Ukrainian identity and those who want to pursue a closer relationship with Russia. Although an independent Ukrainian identity has been evolving since the state gained independence, Russian influence has endured and sought to control economic, political and military aspects of Ukraine’s policies. Strong support for Russia is found in both Crimea and eastern Ukraine, which are populated by an ethnic Russian majority.

The lack of political consensus within Ukraine has led to an unstable internal political situation which has been exacerbated by Ukraine’s tense relationship with Russia.5 The Emergence of Ukraine The word Ukraine translates to “on the edge” or “borderland”, accurately depicting Ukraine’s geographic position in Eastern Europe. Wedged between neighbouring powers, the territory of modern Ukraine has been inhabited since 32,000 BC, with the powerful federation of Kievan Rus’ forming the basis of Ukrainian identity.6 Following Kievan Rus’s fragmentation in the 13th century, the territory was violently contested by neighbouring powers. The region was split between Russia and Poland from the mid-17th century to the end of the 18th century, between Russia and Austria through the 19th century, and divided amongst Russia, Poland, Czechoslovakia and Romania between the two World Wars.7 Throughout Ukraine’s tumultuous history, Russian influence and domination has been unfaltering.

Following the collapse of the Russian Empire in 1917, Ukraine was incorporated into the Union of Soviet Socialist Republics (Soviet Union)8 in 1922 where it remained under Soviet control 4 Anna Reid Borderland: A Journey Through the History of Ukraine (Weidenfeld & Nicolson, London,

1997) at 1.

Andrei Tsygankov “Vladimir Putin’s last stand: the sources of Russia’s Ukraine policy” (2015) 31 5 Post-Soviet Affairs 279 at 281.

Kievan Rus’ was an association of East Slavic tribes present in Europe between the 9th and 13th 6 Century. See Orest Subtelny Ukraine: A History (2nd ed, University of Toronto Press, Toronto, 1994) at 52.

7 Reid, above n 4, at 1.

8 Also known as the USSR, the Soviet Union existed from 1922-1991 as a single-party state governed by the Communist Party in Moscow.

4 until its dissolution in late 1991.9 It was during this 70 year period that large demographic shifts occurred between the Republics in the Soviet Union, causing an intermingling of populations.

The growth of a common identity was encouraged and citizens moved freely within the Soviet Union to pursue employment opportunities wherever they arose.10 Russians had historically been enthusiastic about immigrating to Ukraine due to its temperate climate and high level of socioeconomic and cultural development compared to the other Republics. Moreover, Ukraine was culturally and linguistically familiar, making for an easier transition. Predictably, these migration processes led to a dramatic increase in the number of Russians living in Ukraine.11 Russian migrants have tended to concentrate in large cities, particularly in the popular Donbas region which borders on western Russia, and in southern Ukraine which leads down to the Crimean peninsula.12 These areas remain heavily populated by ethnic Russians today and are at the centre of the current crisis.

Independent Ukraine Looks to the West It was not until the dissolution of the Soviet Union in 1991 that Ukraine gained independent statehood. On 8 October 1991 the leaders of Russia, Belarus and Ukraine agreed to dissolve the Soviet Union and to establish the Commonwealth of Independent States (CIS)13 as a successor entity.14 A fundamental principle established in the wake of the Soviet Union’s disintegration was that the existing Soviet borders between Republics were inviolable.15 The dissolution was then formally enacted on 26 December 1991.16 Despite Ukraine’s newly-gained independence, Russia continued to assert a strong political and economic influence, ensuring that Ukraine’s policies remained favourable to its security interests. In 2004, Russian influence over Ukraine suffered when the Orange Revolution broke out. In November 2004 the victory of the Kremlin’s favoured candidate in the Ukraine 9 Richard Sakwa Frontline Ukraine (I.B. Tauris & Co, London, 2015) at 7.



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