Ukraine Tug of War – When a Trade Pact is Not Just About Trade

Watching the escalating events in Ukraine, where a full-blown civil war is underway, it is very easy to forget the decision that sparked these events.

November 21, 2013, then Ukrainian President, Viktor Yanukovych, announced that his government was abandoning plans to sign an association agreement that would begin the process of strengthening ties with the European Union (EU). Within two months, protests against this decision had led to his forced resignation.

For a significant portion of Ukrainians, closer ties with the EU represent, among other things, a move toward a less corrupt society. The EU is more than a trade bloc. The association agreement signed by the new Ukrainian government with the EU includes an agenda for reforms to support the country’s economic recovery and governance.

For the Russian powers-that-be, one can only speculate that the same move represents a start down the path that has already been taken by Albania, Poland, Romania and other former communist Eastern European countries. Today, these countries are not just members of the European Union, but also of the North Atlantic Treaty Organization (NATO).

NATO is a political and military alliance comprising 28 countries, including the United States. Among other provisions, the North Atlantic Treaty states that an armed attack against one NATO member is considered an attack against all members, requiring them to come to the assistance of the attacked member. Created in 1949, the expected attacker was the precursor to today’s Russia – the Soviet Union.

The Soviet Union’s response to NATO was the Warsaw Pact, also created as a collective defense treaty that would bring its members to the defense of any one that was attacked. In this case, the expected attacker was the United States and its NATO allies. Defunct since the collapse of the Soviet Union, Warsaw Pact members included – Albania, Poland, Romania, and other former communist Eastern European countries. As a part of the territory of the Soviet Union, Ukraine was by default, also a part of the Warsaw Pact.

Today, NATO lives on. All EU members are not NATO members. However, all former Eastern Europe Warsaw Pact members are now NATO members.

The Cold War is ostensibly over, but apparently not for Russia. The steps taken by Ukraine that bring it closer to the EU are apparently being viewed through the cold war prism. Ukrainians deserve the right to choose their own way forward.

Perhaps, however, the United States and the EU have a role to play in de-escalating the rising tensions Ukraine EU Russia
by acknowledging that EU membership, particularly when elected by a
former Soviet republic, is about more than trade.

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On Crimean Secession, Fairness, and Self-Determination

On March 16th, 2013, the Crimean people voted in a referendum, expressing their desire to secede from Ukraine and re-join Russia (Crimea was a part of Russia until 1954, when Khrushchev transferred it to Ukraine; some historical accounts suggest that Khrushchev was drunk at the time).  Crimean population is predominantly Russian, with a large Ukrainian minority and a somewhat smaller ethnic Tatar community.  Much has been written so far on the Crimean crisis, and the recent Russian involvement in the region.  Here, I will focus on the issue of self-determination and secession, in order to shed light on the legality of the Crimean referendum and the de facto separation of Crimea from Ukraine and its de facto merger with Russia. 

International law recognizes the right of self-determination for every “people.”  In the decolonization context, the right to self-determination has been interpreted as leading toward remedial secession, because the colonized peoples were not properly represented by the governments of their mother-states (the colonial powers).  Outside of the decolonization context, however, international law does not positively recognize the right for groups to separate from their mother states.  Instead, international law proposes a distinction between so-called internal self-determination and external self-determination.  The former signifies that groups or peoples are entitled to a form of self-government or autonomy within the confines of their mother state.  This type of autonomy may translate into a free exercise of cultural or linguistic rights, or into the creation of a regional parliament, at best.  As long as the mother state respects the people’s right to internal self-determination, the analysis should stop there (see the Canadian Supreme Court in its advisory opinion on the proposed secession of Quebec).  The latter, more drastic form of self-determination, so-called external self-determination, gets triggered by the mother state’s utmost lack of respect for the relevant people.  If the mother state’s central government is so abusive toward the people that its rights are not properly represented, then international law may suggest that such a people should have a right to external self-determination, which would lead to its separation from the mother state.  Most states, unsurprisingly, are extremely reluctant to recognize a right to external self-determination for any minority group, and the International  Court of Justice, in the recent advisory opinion on Kosovo, failed to develop any sort of a useful normative framework on self-determination (the court instead found that the Kosovar declaration of independence was legal, but did not proclaim that external self-determination or secession would ever be legal).  This state of affairs has led some scholars to note that international law “tolerates” external self-determination and secession, but that no positive right to secession exists within international law. 

How does the above discussion translate into the Crimean situation? One possible argument for the legality of Crimean secession is to focus on the Crimean people’s right to external self-determination.  The argument would go as follows: the Ukrainian central government was no longer representative of ethnic Crimean Russians’ rights, and this triggered the latter’s right to external self-determination, leading toward a remedial secession.  Why was the Ukrainian central government not properly representative of the ethnic Crimean Russians’ rights? Because the Ukrainian Parliament recently voted to cease the use of the Russian language in public life, and because the Crimean Russians felt threatened that this was the first step toward an annihilation of their other rights.  This argument is a stretch because of its speculative nature – while it is possible that the Ukrainian government was about to stop respecting ethnic Russians’ rights, we simply do not know as of now that this was going to happen.  Another argument to support the legality of Crimean secession is to compare Crimea to other secessionist regions around the world.  Unsuccessful recent secessions or attempts at secession include Chechnya and Georgian provinces (South Ossetia and Abkhazia), whereas successful secessions include East Timor, Kosovo, Eritrea, and South Sudan.  How is Crimea different from the former and similar to the latter, or similar to the former and different from the latter? Crimea can arguably be distinguished from Kosovo, because the Serbian government in that case was highly abusive toward the Kosovar Albanians, whereas Ukraine has so far treated ethnic Crimean Russians fairly well.  Crimea can probably be distinguished from East Timor, Eritrea and South Sudan, because all three latter regions (now states) involved instances od delayed decolonization, or delayed rectification of post-colonial borders.  But is Crimea legally distinguishable from Chechnya and the Georgian provinces? If Crimea is entitled to separate from Ukraine, shouldn’t Chechnya be allowed to separate from Russia, and shouldn’t South Ossetia and Abkhazia be allowed to separate from Georgia? And what about other state-like entities, inhabited by peoples entitled to the respect of their self-determination rights, which have been denied statehood due to geo-political reasons (here, I am thinking of Tibet, the Palestinian territories, Northern Cyprus, Republika Srpska, Bougainville, etc.).  At best, one can conclude that self-determination quests by various peoples across the globe have not produced consistent results, and that such quests are often influenced by Great Powers’ politics and foreign policy stances. 

Finally, from a fairness perspective, let me quote a question which one of my International Law students recently posed: since Crimea used to be a part of Russia until 1954, since the legitimacy/rationale of its transfer to Ukraine in 1954 is dubious, and since the majority of its population is Russian and may truly wish to re-join Russia, what is so bad about the referendum and its result? The biggest obvious issue related to the referendum has to do with its own fairness – were the people of Crimea truly able to vote and express their wishes, or was the referendum influenced by the presence of Russian forces? Were the results properly tallied? Assuming that the referendum was conducted fairly, my student’s question seems pertinent and right on point. 

I do not mean to suggest that secessions should start occurring throughout our planet all the time, or that any group should be able to stand up and proclaim its right to separate from its mother state.  I also do not mean to suggest that Putin is a “good guy” – many of his policies appear outright aggressive and calculated to derive the most benefit for Russia at the expense of smaller regions/state.  If Putin truly cared for international law, he should be the first one to recognize the Chechens’ right to self-determination and possible secession from Russia.  What I try to argue in this post is that the Crimean issue is complex, and that instead of simply proclaiming that Ukraine is right and Russia is wrong, we need to step back and analyze the region’s history, as well as to take into account its population’s true desires.