International Law 341
Research Thesis
Validity of the Russian Annexation of Crimea in
terms of International Law
JJ Arries
16054016
Table of Contents
Abbreviations .................................................................................................................. 2
Introduction ..................................................................................................................... 3
1.1 The Research Problem ...................................................................................... 3
1.2 The Research Questions and Research Hypothesis.......................................... 3
1.3 Methodology....................................................................................................... 4
1.4 Limitations .......................................................................................................... 4
2. Acquisition of state territory under international aw ..................................................... 5
2.1 Territory in terms of international law ..................................................................... 5
2.2 Methods of territory acquisition .............................................................................. 5
2.3 History in relation to the Crimean territory ............................................................. 6
2.4 Aspects leading to Russian intervention in Crimea ................................................ 7
3. Annexation of Crimea into the territory of the Russian Federation .............................. 8
3.1 Legal obstacles relating to the Russian annexation ............................................... 8
3.1.1 Validity of Russia’s arguments of its actions in Crimea and their validity .......... 10
3.1.1.1 Violation of the territorial integrity and political independence of Ukraine .. 10
3.1.1.2 Validity of the Crimean referendum resulting in the subsequent annexation
............................................................................................................................... 12
Conclusion .................................................................................................................... 13
Bibliography .................................................................................................................. 14
1
Abbreviations
ICJ International Court of Justice
N.A.T.O. Northern Atlantic Treaty Organisation
U.K United Kingdom
U.N. United Nations
U.N.S.C United Nations Security Council
U.S United States of America
2
Introduction
This research paper aims to address issues relating primarily to the Russian annexation
of Crimea in 2014. Annexation in itself brings forth an array of issues under international
law, and the problem this paper looks into is whether the acquisition of the Crimean
territory by the Russian Federation was valid in terms of international law, as well as
analysing the arguments brought forward by Russia in defence of its actions leading up
to the annexation of the Crimean territory. Aspects relating to the use of force principle
will be critically discussed, as well as issues relating to infringement of state
sovereignty.
1.1 The Research Problem
The main problem upon which this paper is based and aims to address relates to valid
acquisition of territory in terms of international law. Theories of acquisition of territory will
be assessed as well as their current standing under international law. Methods of
acquiring territory will be addressed, and the issues relating to the methods utilised by
Russia in their annexation of the Crimean territory will be analysed and a discussion will
ensue as to whether there is any validity in these arguments under international law with
regard to annexation.
1.2 The Research Questions and Research Hypothesis
The questions this research paper will address is whether the specific methods utilised
by the Russian Federation were valid means of acquiring territory in terms of
international law, elaborated on by a detailed analysis of what annexation entails in
terms of territory acquisition, as well as the arguments brought forward by the Russian
and Ukrainian Government with regards to the actions in Crimea. Questions that will be
addressed entail whether the Russian Governments arguments for acting in defence of
Russian speakers in Crimea, how their occupation did not amount to unlawful use of
force and also whether the government request for military assistance, and also the
legitimacy of the democratic referendum is brought into question, and whether these are
valid arguments in this regard. With a detailed outline and discussion of the various
arguments brought forward, this paper aims to show that arguments 1 and 2 put forward
by the Russian Federation would not have standing in terms of international law,
3
however, they may have some grounding in terms of their third argument, and issues
affecting the fourth argument will also shed some clarity on its validity pertaining to the
matter at hand.
1.3 Methodology
The manner in which the research is carried out in this paper entails an analysis of
international legal principles, with reference to the United Nations Charter as well as
other international sources. Opinions from the Venice Commission is included as it
relates to the specifics of the Russian annexation of Crimea, and other internet sources
such as journal, press and electronic articles are used as reference to gain a better
understanding of the situations leading up to and the later incorporation of Crimea into
the territory of the Russian Federation. The reason behind the specific usage of the
reference material in this paper is due to its concise nature and its specific applicability
to the matter at hand, providing insight as to the current stance under international law,
as well as comparing arguments from all parties involved and their validity in terms of
international law.
1.4 Limitations
This paper will directly address issues relating to the valid acquisition of territory in
terms of international law, as well as detailed analysis of the methods that can be
utilised in the acquisition process, but only to the extent of its possible implications to
the matter at hand. This will be limited to the Russian-Crimean annexation matter, and
not applied broadly. The arguments brought forward by Russia in defence of their
actions will serve as key points in this paper, however, rebuttal arguments on the part of
Ukraine, backed by the United States will serve as a counter –argumentative measure,
and to further this, a rebuttal from the Russian Federation will also be analysed to the
arguments brought forward from the Ukrainian government and other Western parties.
Specific Sections of International instruments, such as the UN Charter will be
used in the discussion of this issue, but limited to that which is applicable to the matter
at hand. Legislative and Constitutional provisions from the Russian Federation as well
as Ukraine and Crimea will be included in the analysis, but only to the extent of
furthering the arguments brought forward from the parties. An opinion issued by the
4
Venice Commission also forms an integral part of this argument, but will only be utilised
to the extent of its application to the legal questions relating to valid means of acquiring
territory under international law, as well as whether any infringement of Ukraine’s
Sovereignty occurred in the Crimean annexation. A critical analysis will be done on the
legal aspects only, and will not be taken too heavily from a political stance, but will
however factor into the arguments.
2. Acquisition of state territory under international aw
2.1 Territory in terms of international law
According to Oppenheim, state territory can be defined as that segment of the surface
of the earth which is regulated by the sovereignty of a state, even if it is just a small
portion, a state cannot exist without territory. The relevance of state territory lies in the
fact that it is the area in which a state exerts its supreme authority. 1 This view is further
supported by the stance that territory is a tangible aspect of statehood in which a state
exercises and enjoys sovereignty, which is a state’s independent right and authority to
govern itself, extended to that they have a defined right to do as they please within their
borders to the exclusion of other states.2
2.2 Methods of territory acquisition
There are a number of methods of acquiring territory in terms of international law. One
such method is occupation, which is essentially a method of acquiring the right to
territory that is not owned by anyone/state, and thus susceptible to acquisition. Another
method would be prescription, which is the acquisition of a right to territory through
continuous, public and peaceful control. This entails an existing exercise of sovereignty.
A third example of acquisition of territory would be by means of conquest, which is a
method of taking control over enemy territory in a time of war by the use of military
forces. Fourthly, cession is another method utilised to shift territory by one sovereign
state to another, and is usually implemented by means of a treaty. Although the
methods of acquiring territory in terms of international law is primarily of academic
interest, when disputes arise, as in the case of the Russian annexation of the Crimean
1
LFL Oppenheim International Law, “Peace” 8ed (1955) 451-452.
2
SD Krasner Problematic Sovereignty: Contested Rules and Political Possibilities (2001) 6-12.
5
territory, competing interests have to be assessed, and the method by which
sovereignty over territory has been established plays a significant role. The third and
fourth methods are what will form part of the arguments in the analysis of the Russian
annexation, with significant emphasis placed on the third method as mentioned above,
and for an historical overview purposes, the fourth method will be briefly discussed.3
2.3 History in relation to the Crimean territory
Since 1783, Crimea formed part of the Russian Empire. Crimea established an array of
short-lived governments in its territorial boundaries during the first part of the Russian
civil war, but later, it was incorporated into the Soviet States. In 1954, administrative
action allowed for a decree for the transfer of most of the Crimean Peninsula by the
Russian Federative Socialist Republic to the then Ukraine Soviet Socialist Republic.4
When the disintegration of the Soviet Union was well on path, Ukraine gained
independence, and preserved the autonomous status of Crimea. In 1992 however, the
Supreme Soviet of Russia endorsed a resolution, which in turn would declare the
transfer of Crimea in 1954 invalid. A variety of confrontations led to this resolution not
having any substantial outcomes on Ukraine or Crimea.5
In the period from 1992 – 1994, a variety of pro-Russian political movements
made attempts to divide Crimea from Ukraine. Regional elections held in 1994 helped
strengthen pro-Russian political parties in Crimea. However, these elections came at a
time when Russia was engaged in reconciliation efforts with the Western World and the
Government of Ukraine was steadfast in maintaining its sovereignty. These factors
allowed for the Ukrainian authorities to dissolve the Crimean Constitution and
Presidency by 1995, and this was done without any consequential protests or
interference.6
3
RMM Wallace International Law 5ed (2005) 96-104.
4
L Siegelbaum “1954: The Gift of Crimea” (2014) Seventeen Moments in Soviet History
<soviethistory.macalester.edu/index.php?page=subject&SubjectID=1954crimea&Year=1954> (Accessed
15-10-2014).
5
A Gamov “Pass Obama – Crimea and Sevastopol could get in Russia 20 Years Ago” (12-3-2014) KN
KPRU (Russian website translated to English) <www.kp.ru/daily/26205/3091201> (Accessed 15-10-
2014).
6
S Pifer “Crisis between Ukraine and Russia” (2009) Council on Foreign Relations <
http://www.cfr.org/ukraine/crisis-between-ukraine-russia/p19695> (Accessed 15-10-2014).
6
2.4 Aspects leading to Russian intervention in Crimea
In late 2013, a movement known as the Euromaiden began a wave of civil unrest and
demonstrations in Ukraine, primarily relating to the closer integration of Europe. These
protests worsened when the Ukrainian Parliament did not comply with demands that the
Ukrainian Constitution should be set back to its pre-2004 format, which in turn would
lessen the powers of the President. The then President of Ukraine, Viktor Yanukovych
received strong support from the Crimean government. Yanukovych was accused of
allowing police officials to use violent measures to clear protestors, leading to mass
murder and corruption, according to reports. He was impeached by the Ukrainian
Parliament.7 Yanukovych fled the state, however, Parliament declared that he “withdrew
from his duties in an unconstitutional manner” and due to this, early elections had to be
conducted and the Ukrainian Parliament sited “circumstances of extreme urgency” as
their grounds for the early election.8
A new Council of Ministers was appointed by Parliament, as well as an Interim
President.9 Some residents, primarily in the Southern and Eastern parts of the country,
who are also predominantly Russian-speaking and formed part of former President
Yanukovych’s support base, felt unrepresented by these developments taking place in
Ukraine, and began protests in Kiev.10 Russia also rejected the new authorities, stating
unconstitutional methods had been used to come to power. Another primary aspect
leading up to the unrest was a draft included in the parliamentarian agenda to repeal the
7
G Satell “What does the Future hold for Ukraine?” (22-2-2014) Forbes
<http://www.forbes.com/sites/gregsatell/2014/02/22/what-are-the-chances-for-peace-and-stability-in-
ukraine/> (Accessed 15-10-2014).
8
D Sindelar “Was Yanukovych’s Ouster Constitutional?” (23-2-2014) Radie Free Europe Radio Liberty <
http://www.rferl.org/content/was-yanukovychs-ouster-constitutional/25274346.html> (Accessed 16-10-
2014).
9
Anonymous “Opposition leader Yatsenyuk elected as Ukraine PM” (27-2-2014) The Hindu <
http://www.thehindu.com/news/international/world/opposition-leader-yatsenyuk-elected-as-ukraine-
pm/article5732959.ece> (Accessed 16-10-2014).
10
Anonymous “Ukraine Crimea: Rival rallies confront one another” (26-2-2014) BBC News Europe <
http://www.bbc.com/news/world-europe-26354705> (Accessed 16-10-2014).
7
2012 law “On the Principles of State Language Policy.” 11 It was adopted and Ukrainian
was deemed as the sole language of the State on all levels.12
This repeal was viewed with much ridicule in Crimea, which is populated largely
by Russian-speakers, and was seen as evidence that the breakdown of former
President Yanukovych’s government, led by the anti-government protests were pressing
for a nationalistic agenda. Even though the bill was later vetoed by the acting President,
it may have come too late.13 Russian President Vladimir Putin was asked to assist in
Crimea to ensure peace and public order. Russian forces operated in Crimea without
any symbols as to their origin. Russia denied they had any authority over the troops in
Crimea, and claimed they were a local self-defence unit.14 The Russian officials did
eventually admit to having their troops present in Crimea, and also acknowledged that
their military was supporting Crimean separatist militias. They claimed their intervention
was necessary in order to “ensure proper conditions for the people of Crimea to be able
to freely express their will.”15
3. Annexation of Crimea into the territory of the Russian Federation
3.1 Legal obstacles relating to the Russian annexation
The Russian defence ministry stated that the country’s military actions were justified
due to threats to the lives of civilians in Crimea, as well as the possible danger of
extremist takeover of Russian military infrastructure.16The Ukrainian Government
complained that Russia violated the Budapest agreement by the increase of their
11
M Elder “Ukraine’s Protest against Russian Language Law” (7-4-2014) The Guardian <
http://www.theguardian.com/world/2012/jul/04/ukrainians-protest-russian-language-law> (Accessed 16-
10-2014).
12
Anonymous “Ukraine: Speaker Oleksandr Turchynov named Interim President” (23-2-2017) BBC News
Europe < http://www.bbc.com/news/world-europe-26312008> (Accessed 16-10-2014).
13
S Ayres “Is it too late for Kiev to woo Russian-speaking Ukraine?” (29-2-2014) The Christian Science
Monitor < http://www.csmonitor.com/World/Europe/2014/0228/Is-it-too-late-for-Kiev-to-woo-Russian-
speaking-Ukraine> (Accessed 15-10-2014).
14
A Comas “Russia says cannot order Crimean ‘self-defence’ units back to base” (5-3-2014) Reuters <
http://www.reuters.com/article/2014/03/05/us-ukraine-crisis-lavrov-spain-idUSBREA240NF20140305>
(Accessed 18-10-2014).
15
President V Putin “Direct Line with Vladimir Putin” (17-4-2014) President of Russia <
http://eng.kremlin.ru/news/7034> (Accessed 18-10-2014).
16
S Krasil’nikov “Shoigu: Actions the defense ministry in Crimea were caused due to life threatening
aspects of civilians” (10-3-2014) TASS Russian News Agency <http://itar-tass.com/politika/1097051>
(Accessed 18-10-2014).
8
troops’ presence in Crimea, and in turn, violated Ukraine’s sovereignty. 17 The United
Kingdom (UK) as well as the United States (US) accused Russia of violating the terms
of the Budapest Memorandum on Security Assurances, to which the UK, US and
Russia affirmed their obligation to refrain from the threat of the use of force against
Ukraine’s territorial integrity, however, the Russian government stated that the Budapest
Memorandum was not applicable because of the “complicated internal processes”
taking place in Crimea.18
According to the Russian Constitution, federal constitutional law governs the
admission of new federal subjects in the territory. 19 This entails a mutual concurrence
between the relevant state and the Russian Federation, and takes place in conjunction
with an international treaty agreement between the two states; more so, it has to be
initiated by the country in question, not by Russia or any of the country’s subdivisions.
Through this law, it would seem that Ukraine’s initiation of any negotiations is a
requirement for the annexation of the Crimean territory by the Russian Federation. A bill
was introduced to the Russian Parliament to alter the procedural aspects for the
addition of new federal subjects; in that it could be initiated by a subdivision of a
country, on their own or by means of a referendum held in the subdivision, but it has to
correspond with national legislation. The Venice Commission came to the conclusion
that the bill “violated in particular, the principles of territorial integrity, national
sovereignty and non-intervention in the internal affairs of another state”, and thus
deemed incompatible with international law. 20 The bill was later withdrawn.
17
C Crawford “Vladimir Putin’s illegal occupation of Crimea is an attempt to put Europe’s borders up for
grabs” (10-3-2014) The Telegraph
<http://blogs.telegraph.co.uk/news/charlescrawford/100262865/vladimir-putins-illegal-occupation-of-
crimea-is-an-attempt-to-put-europes-borders-up-for-grabs/> (Accessed 18-10-2014).
18
Anonymous “Medvedev: Russia does not guarantee the integrity of Ukraine” (10-3-2014) BBC <
http://www.bbc.co.uk/russian/rolling_news/2014/05/140520_rn_medvedev_ukraine> (Accessed 18-10-
2014).
19
Art. 65 (2) The Constitution of the Russian Federation 1993.
20
European Commission for Democracy through Law (Venice Commission) Opinion on “whether draft
federal constitutional law no. 462741-6 on amending the federal constitutional law of the Russian
Federation on the procedure of admission to the Russian Federation and creation of a new subject within
the Russian Federation is compatible with international law” Venice, 21 March 2014 Opinion no.
763/2014.
9
3.1.1 Validity of Russia’s arguments of its actions in Crimea
Russia has presented a number of arguments in favour of its actions in Crimea. These
arguments range from action in defence of Russian speakers residing in Crimea, action
in response to government request for military assistance as well as their defence of
their actions amounting to unlawful use of force in the territory of Ukraine. These
arguments have generated two very critical legal questions in this matter. The first
relating to whether international law had been violated by the Russian Federation with
regards to the political independence and territorial integrity of Ukraine, and secondly,
the legality of the referendum, which was held by Crimea, to become a part of Russia.
This is another argument Russia presented as a ground of justification for the
annexation of Crimea.21
3.1.1.1 Violation of the territorial integrity and political independence of Ukraine
The UN Charter states in article 2(3) that an obligation is placed on nations to utilise
peaceful means to settle international disputes.22 Article 2(4) in turn prohibits members
of the UN from using force or even the threat of the use of force against any state’s
political independence and territorial integrity. 23 However, the UN Charter does make
provisions for certain situations in which the use of force can be justified, supplemented
by strict procedural provisions. This entails situations where the UN Security Council
provides authorisation for actions to restore or maintain international peace and
security, where the territorial state consents, or in cases where a country utilises its
inherent right to self defence.24
Russia did not gain authorisation from the UN Security Council in the matter
relating to Crimea, and has relied primarily on its arguments of acting in defence of
minorities abroad. The Friendship treaty between Russia and Ukraine provides some
leeway in terms of legal cover for Russia’s actions. This treaty, in part, specifically
21
H Raina “Legal Questions of Russia’s Intervention in Ukraine” (21-4-2014) International Policy Digest
<http://www.internationalpolicydigest.org/2014/04/21/legal-questions-russias-intervention-ukraine/>
(Accessed 20-10-2014).
22
United Nations, Charter of the United Nations, Adopted 26 June 1945, 1 UNTS.
23
United Nations, Charter of the United Nations, Adopted 26 June 1945, 1 UNTS.
24
United Nations, Charter of the United Nations, Art 51, Adopted 26 June 1945, 1 UNTS.
10
requires the protection of Russian origin ethnic minorities in Ukraine.25 The defence of
protection of citizen’s principle was used by the United States in their intervention in
Grenada and Panama. This principle was also utilised by the North Atlantic Treaty
Organisation (NATO) for the protection of minorities in Kosovo during their transition to
independence. NATO argued against Russia’s use of the Kosovo precedent as grounds
for their intervention in Ukraine, by citing the difference in the situations, that being that
many lives were lost prior to NATO intervening in Kosovo.26 The Russian President
debunked this argument in a statement on the ground that nations should not have to
wait for the slaughter of innocent people before providing intervention.27 The scope of
the threat posed to Russians however, has been deemed a matter of speculation rather
than law.28
Some, if not most States and scholars are of the view that even if a state utilises
the use of force against another state, that use of force by itself may not in turn prompt
the harmed state to use its right to self defence. This right requires a specific type of
force, that being an armed attack, in terms of the UN Charter. 29 An archetypal example
of an armed attack would be a case where one state bombs another; because no shots
were fired, except in occasional scuffles,30 the question arises whether Russia’s actions
amount to an armed attack, Ukraine would not be lawfully allowed to use force against
Russian troops in order to protect the territory, that undisputedly, forms part of Ukraine.
If Russia’s actions do amount to an armed attack in terms of article 51 of the UN
Charter, then the question to Ukraine would be whether their use of force would be
necessary in the matter, and if no other reasonable steps to resolve the matter are
available, jus ad bellum (proportionality) would be applicable to their actions.
25
Treaty of Friendship, Cooperation and Partnership (Russia-Ukraine) Art. 12 (31 May 1997).
26
C Doebbler “Coming to Ukraine: The hypocrisy of the American understanding of International Law”
(11-3-2014) Jurist < http://jurist.org/forum/2014/03/curtis-doebbler-ukraine-hypocrisy.php> (Accessed 19-
10-2014).
27
President V Putin “Address by President of the Russian Federation” (18-3-2014) President of Russia <
http://eng.kremlin.ru/transcripts/6889> (Accessed 19-10-2014).
28
H Raina “Legal Questions of Russia’s Intervention in Ukraine” (21-4-2014) International Policy Digest.
29
United Nations, Charter of the United Nations, Art 51, Adopted 26 June 1945, 1 UNTS.
30
S Walker “Russian takeover of Crimea will not descend into war, says Putin” (4-3-2014) The Guardian
< http://www.theguardian.com/world/2014/mar/04/ukraine-crisis-russian-troops-crimea-john-kerry-kiev>
(Accessed 19-10-2014).
11
Russia’s actions in Crimea provide two recurring themes in “the use of force” law:
firstly, that some of its concepts are still malleable on paper, and secondly, that some
specific actions of force fall within the centred understanding of those concepts, to the
extent that most credible sources agree that the actions amounted to a violation of
international law.31
3.1.1.2 Validity of the Crimean referendum resulting in the subsequent annexation
Ukraine has stated its position, and this is supported by the US, in that the annexation
of Crimea into the Russian Federation does not comply with the fundamental norms and
principles of international law, based on the argument that the referendum amounted to
a violation of Ukrainian domestic laws and was also unconstitutional.32 There are
grounds on which this argument is flawed. Firstly, the President of Ukraine holds the
power, in terms of the Ukrainian Constitution, to suspend legal acts passed by the
government of Crimea if it is based on inconsistencies with Ukrainian laws. This can be
achieved by requesting the Constitutional Court of Ukraine to rule on the
constitutionality of the law.33 The circumstances that led up to the Constitutional Courts
decision brings forth the question of the validity of a judgement in a case where the
judiciary was coerced, which further raised questions on the independence of the
judiciary of Ukraine.34
A much bigger problem however, relates to the legitimacy of the government in
Ukraine, given that one of Russia’s arguments in support of its actions was a response
to a request for military assistance by the “legitimate” President of the country, Victor
Yanukovych, and their position on the premise that the government came to power
through a coup d’état, resulting in the President “fleeing” his position.35 This argument
on the part of Russia does actually have force, in that the Constitution of Ukraine
provides only four situations in which a President may lose office; death, formal
31
A Deeks “Here’s what international law says about Russia’s intervention in Ukraine” (2-3-2014) New
Republic < http://www.newrepublic.com/article/116819/international-law-russias-ukraine-intervention>
(Accessed 19-10-2014).
32
H Raina “Legal Questions of Russia’s Intervention in Ukraine” (21-4-2014) International Policy Digest.
33
Art. 108 of The Constitution of Ukraine, 1996.
34
J Helmer “Legal Vacuum at Ukrainian Constitutional Court” (20-3-2014) RT < http://rt.com/op-
edge/ukraine-constitutional-court-legal-vacuum-117/> (Accessed 19-10-2014).
35
H Raina “Legal Questions of Russia’s Intervention in Ukraine” (21-4-2014) International Policy Digest.
12
resignation, impeachment or medical incapacity.36 It can be said that President
Yanukovych was not removed from office by the parliament of Ukraine, but rather they
voted to accept his “voluntary renunciation of duties”. 37 Ultimately, despite any
assertions from the West on any other point, the fact remains that Yanukovych had
been elected to power by means of a fair election, deemed fair by Western monitors
themselves, making his request for military intervention for the restoration of law and
order in Ukraine, valid.
The second ground on which Ukraine’s argument is flawed relating to the validity
of the referendum is that in terms of international law, and as far as it is concerned, no
prohibitions exists on unilateral declarations of independence by sub-divisions of a
state, and this position is supported by the advisory opinion of the ICJ on the matter
Kosovo’s declaration of independence in 2008. The Russian President quoted
submissions made by the United States to the ICJ, that repeat their position,
“declarations of independence may and often do, violate domestic legislation. However,
this does not make them violations of international law.
Conclusion
Given the arguments made by both parties to the matter, it is clear that in some
aspects, Russia did violate international law with regards to the annexation of the
Crimean territory. Their arguments on the use of force do not fall in line with the
international standards, and thus are invalid. They are however correct in quoting
precedents, such as the Kosovo independence matter, as grounds for acting in defence
of minorities. The validity of the referendum may be invalid in terms of the domestic law
in Ukraine; however, in terms of international law, no prohibition currently exists with
regards to declaration of independence by sub-divisions of a state.
36
Art.108 of the Ukraine Constitution, 1996.
37
O Turchynov “Resolution of the Verkhovna Rada of Ukraine” (22-2-2014) Verkhovna Rada of Ukraine <
http://iportal.rada.gov.ua/en/news/News/News/88138.html> (Accessed 19-0-2014).
13
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