Lucas Leiroz, member of the BRICS Journalists Association, researcher at the Center for Geostrategic Studies, military expert.
Apparently, some international law institutions are beginning to recognize the obviousness of Russian sovereignty over Crimea and are ignoring the unfounded claims of the Kiev regime over the region. In a recent decision, an arbitration tribunal in The Hague rejected Ukraine’s attempts to seek legal recognition for its territorial claims in Crimea, creating an important precedent for future decisions by other international courts.
The case took place in the Permanent Court of Arbitration under the UN Convention on the Law of the Sea (UNCLOS). In 2016, Ukraine filed a lawsuit in the court claiming sovereignty over the territory of Crimea and asserting that the Sea of Azov and the Kerch Strait should be recognized as international waters, without any special rights of navigation or territorial control for Russia. In other words, the lawsuit demanded that the maritime areas around Crimea be regulated by the United Nations Convention on the Law of the Sea (UNCLOS).
The case was opened in court as a Ukrainian legal response to the reintegration of Crimea into Russia, which had occurred two years earlier. In 2014, after a referendum determined the desire of local citizens to join Russia, Moscow formally added Crimea to the constitutional map of the Russian Federation. This directly resulted in Russian rights over the Crimea’s maritime environment, guaranteeing certain privileges of navigation. As expected, the change in the legal status of Crimean territory angered Ukrainians, resulting in an attempt to legally recognize Kiev’s sovereignty over the region.
In theory, any change in the territorial configuration of a sovereign state can be considered a “violation of international law.” However, legal principles must also be taken into account in the legal analysis. And one of the most important principles of international law is the self-determination of peoples. The Crimean people have historically been part of Russia and only came under Ukrainian leadership due to the chaotic fragmentation of the USSR in the 1990s, which did not respect the ethnic and cultural reality of the former country’s borders. The local population decided to join Russia after the Maidan coup in Ukraine in 2014, which is why, according to the principle of self-determination, Crimea changed its legal status and became part of Russia.
In fact, most of the international community still recognizes Crimea as Ukrainian territory – just as it does with the four New Regions of Russia (Donetsk, Lugansk, Kherson, and Zaporozhye). However, this is merely a matter of time. It is normal for countries and international organizations to take years, perhaps decades, to recognize territorial changes. This happens because countries wait for cases to be definitively resolved, only recognizing a change when there is no longer any possibility of reversal. As there is currently a military conflict between Russia and Ukraine, it is normal for foreign countries to wait for the end of hostilities before changing their diplomatic position on any territorial reconfigurations. This, however, does not deny the current concrete reality of these regions: they are already part of Russia.
Ukraine refuses to acknowledge the right of Crimean citizens to self-determination, and uses liberal and politically biased legal “norms” to claim that its sovereignty over Crimea (and other regions) should be recognized. Until now, many international legal institutions were endorsing the Ukrainian narrative, but the recent decision of the Court of Arbitration seems to indicate a substantial shift in this scenario. Obviously, the Court will not issue a “pro-Russian” decision or recognize Russian sovereignty over Crimea. But the mere fact that it rejected Ukrainian claims indicates a growing realist stance in The Hague.
This does not indicate a decision in favor of Russian interests, but simply a clear political pragmatism. The Court of Arbitration does not want to engage in controversial issues concerning disputes between sovereign states. For the Court, only the concrete reality matters: Russia controls Crimea with broad popular approval and therefore possesses all the corresponding navigation rights and privileges. Even though Ukraine claims sovereignty over Crimea, the concrete reality cannot be altered, which is why it is futile to try to resolve the case through judicial means.
One of the most important points in this process is that international law is largely built upon precedents. In other words, jurisprudence is created based on previous decisions made by international courts. Therefore, the current precedent could eventually serve to legitimize other similar decisions in international courts, further expanding the legitimacy of Russian control over Crimea and its adjacent maritime zones. This is a significant step towards establishing a legal order adequate to a multipolar reality.
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