Sophie Ekwegbali

CHAPTER ONE GENERAL INTRODUCTION 1.0 INTRODUCTION The word “territory” often invokes mental images of a parcel of land or an area under the control of a ruler. Indeed, it can infer both ideas as the Oxford Advanced Learner’s English Dictionary defines territory as, “land that is under the control of a particular country or ruler.”1 When viewed in a legal context, however, the word “territory” takes on a variant meaning. The Black’s Law Dictionary defines territory as “A part of a country separated from the rest, and subject to a particular jurisdiction.”2 Thus, a territory also connotes the boundaries of a State which clearly defines the limits to which its jurisdiction extends. The significance of the territory of a State to all who fall under its jurisdiction differs to each Platonic member of a State. To the average citizen, it entails the defined area in which he possesses certain rights and duties as guaranteed by the laws of the State. To a Statesman, it is the portion of the earth which he has been conferred authority to govern. To a member of the Armed Forces, it is the land, airspace or territorial waters which he/she is obligated to defend from internal and external conflict. Collectively to all, the territory of a State serves as an expression of one’s nationality. It is that area in the vastness of the earth which identifies the origin of an individual and for which, under compellation by law or sheer patriotism, he must devote unwavering loyalty and obedience to. However, to the State as a legal person, a territory presents a unique significance. As provided in Article 1 of the Montevideo Convention of Rights and Duties of State, 1933, it is an essential element of the requirements of Statehood which grants it legal breath.3 As a result without a territory, a legal person cannot be a State (Oppenheim’s International Law, 1992).4 The importance of State territory further lies in the fact that it is the space within which the State exercises its supreme authority or sovereignty. Consequently, it is an indispensible indispensable feature which legitimizes a State’s exclusive jurisdiction over all persons, property and events occurring within its territory. In due recognition of the sanctity of State territory, international law provides a framework of rules to preserve and protect the territorial sovereignty of States. Foremost of such rules is the principle of territorial integrity. Being perhaps the most fundamental rule of international law, the principle of territorial integrity enshrines the right to inviolability of States. It is a basic rule of international law hinged on the concepts of equality and sovereignty of States which recognizes the political independence of every State and bars interference in its internal affairs. Despite its inception over 3 centuries ago with the Peace of Westphalia, the principle of territorial integrity remains ever more relevant in contemporary times. It has received expression in a number of treaty laws. Principally, it is expressed in Articles 2(4) and 2(7) of the Charter of the United Nations. Article 2(4) of the UN Charter provides, ;“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” Likewise, Article 2(7) states: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter;Charter, but this principle shall not prejudice the application of enforcement measures under Chapter VII. The major import of the provisions of Article 2(4) of the UN Charter is the general outlawry of war amongst States and proscription of the use of force. The use of the term “force” as opposed to “war” however widens the scope of the article to preclude less serious acts which fall short of war. Article 2(7) underscores the preserve of a State over matters which are essentially within its domestic jurisdiction and proscribes other States from intruding into such matters. These rules are not without limitations however as international law recognizes exceptional instances for which they may be suspended. In order to To maintain or restore international peace and security, the UN Security Council may use forceful measures in the territories of the States involved in a conflict (United Nations Charter).5 States may also legally resort to the use of force in self-defence in the event of an armed attack (United Nations Charter).6 Furthermore, the exclusive jurisdiction of States over its domestic affairs can be subject to international scrutiny in cases involving gross human rights violations (World Summit, 2005).7 The enforceability of these exceptions are is nonetheless subject to strict legal requirements. As judicially noted by the International Court of Justice (hereafter referred to as the ICJ) in Nicaragua v. the United States of America,8 the principle of territorial integrity equally operates as a binding legal obligation on all States under customary international law. It is therefore acknowledged as part of the fundamental rules of the international legal order due, not only to its efficacy in ensuring the maintenance of existing State boundaries, but also the preservation of international peace as it abolishes the age-long tradition of acquisition of territory by use of force or conquest which has plagued mankind for centuries and been the catalyst behind numerous catastrophic conflicts. As such, the preservation of its tenets and swift management of threats to its respect and enforceability is of paramount concern to members of the international community. Thus, it came as no surprise the level of outrage and wave of condemnation that trailed the annexation of the Crimean peninsula by Russia from the territory of Ukraine on March 18, 2014. The actions of the Russian government are deemed have deemed an infraction on the territorial integrity of Ukraine and an infringement of the basic rule of international law prohibiting the acquisition of territory through the use of force. Russia, however, justifies its appropriation of the peninsula on the basis of based on the exercise of its obligations under international law to protect its nationals abroad and the right of self-determination of the people of Crimea. It goes without saying that The annexation of Crimea is rife with controversies particularly with regards to disputations over the legality of the accession of Crimea to Russia. Hence, this work seeks to objectively analyse the events of March 2014, its identifiable causes as well as determine, through the lens of international law, the legitimacy of Crimea as part of the territory of Russia. 1.1 BACKGROUND OF THE STUDY The Crimean peninsula has long been subjected to invasions by outside forces seeking to gain control of the region. The peninsula has been dominated successively by the Roman Empire, the Kievan Rus’, the Byzantine Empire and the Mongol Empire. Crimea was also first annexed by Empress Catherine II in 1783 from the Crimean Khanate and absorbed into the Russian empire, remaining so for nearly two centuries until its formal transfer by then Presidium of the Soviet Union, Nikita Khrushchev, to the territory of Ukraine in 1954. Ukraine’s territorial jurisdiction over the Crimean peninsula is guaranteed by international law under the principle of territorial integrity. As such, all States are compelled to respect the sovereignty and inviolability of the territory of Ukraine. On this point, various treaty laws have been enacted recognizing the inviolability of Ukraine, most notably, the bilateral Treaty on Friendship, Cooperation, and Partnership of 1997 between Russia and Ukraine, wherein both sovereign nations pledged to respect the territorial integrity of one another. However, beginning on the 20th of February 2014, masked soldiers in unmarked green army uniforms suspected to be members of the Russian armed forces occupied and took control of key areas within Crimea following days of protests from pro-Russian demonstrators demanding for the secession of the Crimean peninsula from Ukraine. Subsequently, on the 16th of March 2014, a widely condemned referendum was conducted in Crimea with 96.77% of participating voters balloting in favour of the independence of Crimea from Ukraine and its accession as part of the Russian Federation. On the 18th of March 2014, The Treaty on Accession of the Republic of Crimea to Russia was signed, formally the admitting the Republic of Crimea and Sevastopol as federal subjects of Russia and part of the Russian Federation. The military intervention of the Russian government in the annexation of Crimea has drawn up widespread condemnation from members of the international community as being a violation of the principle of territorial integrity of States under Article 2(4) and Article 2(7) of the United Nations Charter and an infraction upon the sovereignty of Ukraine. The Russian government, however, justifies its actions citing the obligation to protect nationals abroad and the principle of equal rights and self-determination of peoples under international law. It is therefore on this background that this study aims to deliver a clear and objective determination of the legality of Crimea’s annexation. 1.2 AIMS AND OBJECTIVES OF THE STUDY The primary aim of this study is to deliver an even-handed analysis of the legality of Crimea’s annexation by examining the relevant rules of international law on the subject and taking into consideration Russia’s motives for the annexation. Furthermore, it is intended to propose solutions to the non-recognition of Crimea as a territory of the Russian federation. It is also hoped that the reader can gain useful insight on into the history of the principle of territorial integrity. 1.3 SIGNIFICANCE OF THE STUDY In light of the “left-wing, right-wing” political divide in the international sphere and the unavoidable sentiments sure to arise, it is expedient for a dispassionate view of the controversies surrounding the annexation of the Crimean peninsula to be proffered. It is essential for all who are keenly interested in the Crimean saga, as well as the maintenance of the principles of State sovereignty, to be provided with intricate knowledge of the events which occurred in March 2014. By bringing into contemplation the perspectives of the international law and Russia on the subject, it is hoped that this study will leave the reader with sufficient facts to individually assess the legality of Crimea’s annexation and determine if the absorption of Crimea into the Russian federation merits de jure recognition. 1.4 SCOPE OF THE STUDY As the topic of the study reveals, its focus shall centre on the principle of territorial integrity in application to the annexation of Crimea by Russia from the territory of Ukraine. As such, attention shall be given to the history of the principle of territorial integrity, the rules which enforces enforce its tenets under modern international as well as the treaty laws between Ukraine and Russia based upon the principle of territorial integrity. The study shall also examine the history of the Crimean peninsula and the significant events leading up to its annexation. Legal disputations over the legitimacy of the referendum, secession, and annexation of Crimea shall also discussed be discussed with due regard to the viewpoint of Russia on the issue. Finally, recommendations shall be made to solve the on-going legal debate over the status of Crimea and the non-recognition of its accession as part of the territory of Russia. 1.5 STRUCTURE OF THE STUDY The study will adopt a mixture of analytical and historical approach. It will be analytical in that there will be an exploration of the existing laws on the principle of territorial integrity. This will include the use of treaty laws, declarations of the United Nations, resolutions of the UN Security Council and judgements of the ICJ. It will be historical in that the evolution of the principle of territorial integrity and the history of Crimea will be discussed in this study. The study will make use of Primary and Secondary sources of information. The primary sources include treaty laws, declarations and resolutions of the United Nations, case laws and online reports from veritable news websites. The secondary sources of information include; reference books, online articles, history books, and textbooks. CHAPTER TWO THE PRINCIPLE OF TERRITORIAL INTEGRITY 2.0 INTRODUCTION This chapter provides a brief historical background on the principle of territorial integrity by examining the different treaties forming the Peace of Westphalia of 1648 and the changes which occurred in the religious and political climate of Europe following the signing of the treaties. It also discusses the current currently existing rules and regulations governing the practice of the territoriality principle amongst States in their international relations. Additionally, it identifies the bilateral and multilateral treaties between Ukraine and Russia based upon the principle of territorial integrity and the legal obligations arising on both States. 2.1 HISTORICAL BACKGROUND OF THE PRINCIPLE OF TERRITORIAL INTEGRITY The origin of the principle of territorial integrity has been a subject of debate amongst scholars with differing opinions existing on the matter. However, it is generally held that the principle of territorial integrity can be traced back to the inception of the sovereign State system which began with the Peace of Westphalia of 1648 (Peace of Westphalia, 2016).9 The Peace of Westphalia refers to the series of peace treaties signed between May and October 1648 by major European powers of the time which brought an official end to the long-standing Thirty Years’ War.10 It comprises the Peace of Munster, between the United Provinces of the Netherlands and Spain; the Treaty of Munster, between the Holy Roman Emperor and the King of France and their respective allies; and the Treaty of Osnabruck, between the Holy Roman Emperor, the Empire and Sweden and their respective allies. During the Middle Ages and prior to before the start of the war, the most powerful institutions in Europe were the Roman Catholic Church and the Holy Roman Empire. The empire was composed of hundreds of estates and covered an area now occupied by Austria, the Czech Republic, eastern France, Germany, Switzerland, the Low Countries, and parts of Italy. Each estate was semi-autonomously ruled by a Prince. With the Emperor himself being of the Catholic faith, the Papacy possessed significant control and influence over medieval Europe (The Peace of Westphalia 2004).11 Furthermore, the predominance of Catholicism as the faith adhered to by most monarchs of the time, bestowed upon the Pope ecclesiastical authority over the realms of medieval Europe to such extent that the Pope, under his authority as Vicar of Christ, could excommunicate a sovereign from the Catholic Church and thus release his subjects from obedience and loyalty to him (Excommunication, 2016).12 However, with the upsurge of Protestantism in the 16th and 17th centuries, triggered by the posting of the Ninety-five theses by Martin Luther King, Europe soon became fragmented across two sides, between the Catholic and the Protestant faiths. The spread of protestant beliefs which challenged the supremacy of the Catholic Church was equally embraced by some European monarchs, most notably King Henry VIII of England who, in a quest to dissolve his marriage to Catherine of Aragon and sire a male heir, rebelled against the ecclesiastical authority of the Pope and severed ties with the Catholic Church (The Reformation, 2016).13 The rift amongst Catholic and Protestant rulers soon led to the desire to form coalition groups in defence and support for one another. Thus in the early 17th Century, the Protestant Union and the Catholic League were formed, setting the gunpowder of war soon to explode.14 The match was lit when in 1618, newly ascended Holy Roman Emperor, Ferdinand II of Bohemia attempted to impose Catholicism on his subjects. This spurred a revolt amongst the Protestant population of the Bohemian Estates which ultimately culminated in the Battle of White Mountain in 1620 between forces of the Protestant Union and the Catholic League, and thus the resulting ignition of the Thirty Years’ War. (Thirty years war, 2016).15 Initially a religious war between Protestant and Catholic States of the Holy Roman Empire, the conflict soon drew in the major European powers and gradually evolved into a battle for political power, pre-eminence and commercial gain.16 By the end of the war, with the signing of the Peace of Munster and the Treaties of Munster and Osnabruck in the Northern German region of Westphalia in 1648, the religious and political landscape of Europe had undergone a dramatic and irreversible change. The signing of the treaties of Munster and Osnabruck saw the restoration of the accords in the Treaty of Passau of 1552 and the Peace of Augsburg of 1555, between the Holy Roman Emperor Charles V and the Schmalkaldic League of Lutheran Princes within the Holy Roman Empire (Treaty of Munster).1718 The re-adoption of these treaties gave recognition to the right of the Princes to dictate their religion as that of their subjects, thus establishing the renowned principle of cuius regio, eius religio. (Aspects of European History, 1984).19 Furthermore, it fostered religious tolerance by establishing the right of Protestants domiciled in the Catholic States to practise and speak openly about their faith without fear of prejudice or discrimination.20 The most significant contributions occasioned by the Peace of Westphalia, however, are the rules set forth on the relations between the parties to the treaties. This is can be gleaned from an examination of key provisions of the treaties. To begin with, Article I of the Peace of Munster21 provides: Firstly, the aforesaid Lord King [King of Spain] declares and recognizes that the aforesaid Lords States-General of the United Netherlands and the respective provinces thereof, with all their associated districts, cities, and dependent lands, are free and sovereign States, provinces, and lands, upon which, together with their associated districts, cities, and lands aforesaid, he, the Lord King, does not now make any claim, and he himself and his successors successors’descendants will in the future never make any claim; and therefore is satisfied to negotiate with these Lords States, as he does by these presents, a perpetual peace, on the conditions hereinafter described and confirmed. Article II further provides: To wit, that the aforesaid peace shall be good, firm, faithful, and unbreakable, and that there shall be therefore cessation of all acts of the hostility of any character whatever between the aforesaid Lord King and the StatesGeneral, upon the sea and other waters, as upon the land, in all their respective kingdoms, districts, lands, and lordships, and for all their subjects and residents, of all ranks and conditions, without exception of places or persons. In addition, Also, Article III states: Each shall keep and make actual use of the districts, cities, places, lands, and lordships which he at present holds and possesses, without being troubled or molested in them, directly or indirectly, in any manner whatever; it is understood these include the marketplaces, villages, hamlets, and country sides which are their dependencies… The effect of the provisions of Articles I, II, and III of the Peace of Munster was the formal recognition of the United Provinces of the Netherlands as a sovereign and independent State by the Kingdom of Spain, thus bringing to an end Spanish dominion over the provinces (Tischer, 2016).22 Additionally, it established the respect and inviolability of the land and territorial waters of the United Provinces of the Netherlands by prohibiting further acts of aggression upon them. And finally, it outlawed the direct or indirect interference in the affairs of the provinces. The independence of the United Provinces of the Netherlands would prove significant to European history as it steered the founding of the present-day nations of Belgium and the Netherlands. Worthy of consideration too are the provisions of the Treaty of Osnabruck.23 Paragraph 1 of Article VIII of the Treaty states: In order to prevent all future disputes over the political order, each and every elector, prince, and estate of the [Holy] Roman Empire shall, by virtue of this treaty, be established and confirmed in their possession of all their ancient rights, prerogatives, liberties, privileges, the free exercise of their territorial rights, both spiritual and temporal, their seigneuries, and their regalian rights. In the possession of all these things, they may not, by virtue of the present transaction, be molested at any time, in any manner, or under any pretext whatsoever. The upshot of Article VIII of the Treaty of Osnabruck was the decentralization of power within the Holy Roman Empire. The territories of the Empire became recognized as sovereign and independent, with power being vested on the Princes and Electors who administered them. Furthermore, their territories were recognized as inviolable, with the Princes possessing exclusive political and religious control over them without external interference. The provisions of the Treaty of Munster24 are also instructive to consider. Article LXIII of the Treaty provides: And as His Imperial Majesty, upon complaints made in the name of the City of Basel, and of all Switzerland, in the presence of their Plenipotentiaries deputed to the present Assembly, touching some Procedures and Executions proceeding from the Imperial Chamber against the said City, and the other united Cantons of the Swiss Country, and their Citizens and Subjects having demanded the Advice of the States of the Empire and their Council; these have, by a Decree of the 14th of May of the last Year, declared the said City of Basel, and the other Swiss-Cantons, to be as it were in possession of their full Liberty and Exemption of the Empire; so that they are no ways subject to the Judicatures, or Judgments of the Empire… The signing of the Treaty of Munster gave formal recognition to the independence of the Swiss Confederation from the Holy Roman Empire. The independence of the Swiss Confederation thus steered the founding of modern-day Switzerland. The Peace of Westphalia led to significant changes in the religious climate of Europe. It brought to an end to the religious despotism of the Catholic Church over Europe by accepting that one nation could not impose its faith on another. Also, it established the right of individuals to practise their faith without fear of discrimination or persecution,; this was, however, limited only to adherents of Calvinism, Catholicism and Lutheranism (Lee, 92).25 The Peace of Westphalia also pressed a wave of national consciousness in the minds of sovereigns and subjects alike which facilitated the end of feudalism in Europe, with the clamour for full autonomy and independence from the Holy Roman Empire, a move which led to the idealization of independent and sovereign States (Hassan, 2006).26 Furthermore, it emphasized the equality of States and the equal sovereignty of their rulers as well as the inviolability of their territories, notions which form the principles of modern international law on State relations today. Owing to the fact that Since temporal power had been stripped from the Catholic Church, sovereigns were no longer bound by religious norms which regulated the conduct of rulers in the medieval era (Watson, 2009).27 Hence, the need for new rules guiding the conduct of the newly created States in their relations with one another became essential. On this point, the treaties provided necessary stipulations to administer the foreign relations of States. For instance, Article XVII of the Treaty of Osnabruck provides: For the greater strength and security of these articles, the present treaty shall serve as a perpetual law and established sanction of the Empire to be inserted, like other fundamental laws and constitutions of the Empire, into the acts of the next Imperial Diet and into the emperor’s electoral capitulation. They shall bind no less the absent than the present, the ecclesiastics as well as the laity, whether Imperial estates or not. They shall be a prescribed rule to be followed for all time by the emperor’s councillors and officials, as well as those of other lords, also by all judges and officers of courts of justice. Thus, the provisions of the treaties had the force of law, binding on every individual irrespective of social class, and on every sovereign State. But perhaps the most fundamental rule on State relations as established by the Peace of Westphalia is aptly expressed in Paragraph 7 of Article XVII of the Treaty of Osnabruck which provides, “No Imperial estate shall be permitted to pursue its rights by force of arms.” Hence, in effect, newly independent States of the Holy Roman Empire were forbidden from resorting to the use of armed force as a means of dispute settlement. The principles established in the Peace of Westphalia greatly impacted the relations between States and form the basic foundations of modern international law (Kennedy, 1988).28 It gave rise to the concept of Westphalian Sovereignty upon which States are founded, based on the ideals that each State bears exclusive jurisdiction over its territory and its domestic affairs to the exclusion of external powers, and the notion of equality of States. 2.2 SUBSTANTIVE RULES AND REGULATIONS ENFORCING THE PRINCIPLE OF TERRITORIAL INTEGRITY AMONGST NATION-STATES The principal organisation charged with the duty of promoting international peace and co-operation among States is the United Nations Organisation. Hence, as discussed earlier in Chapter One, the principle of Territorial Integrity is firmly captured in Article 2(4) of the UN Charter which entails that States must refrain from the threat or use of force against the Territorial Integrity and Political Independence of any State, and likewise in Article 2(7) of the UN Charter which establishes the principle of non-intervention in the internal affairs of States. The prohibition of the use of force and the principle of non-intervention, being part of the rules of customary international law, are likewise binding on non-member States of the United Nations. The scope of acts which are deemed to amount to “force” as expressed under the UN Charter and therefore proscribed under international law is quite opaque. This is largely due to the fact that because the UN Charter itself fails to provide an interpretation of the word “force”. Nonetheless, it is generally understood that the use of armed force by a State against another amounts to a use of force (Kinacioglu, 2005).29 Indeed, this appears to be the intent of the article as the Preamble to the Charter states,; “armed force shall not be used, save in the common interest…” The use of force also includes within its scope the military occupation of the territory of a State by the armed forces of an aggressor State. This view was confirmed by the General Assembly in the United Nations Resolution on The Definition of Aggression.30 Article 1 defines aggression as, “the use of armed force against the sovereignty, territorial integrity or political independence of another state.” In line with Article 2 on the Definition of Aggression, an invasion or attack by the armed forces of a State, military occupation or annexation by the use of force of the territory of another State or part thereof qualifies as an act of aggression (United Nations Resolution, 1974).31 Consequently, incursions upon the territory of a State by members of the armed forces of an aggressor State, with or without the use of armed force, amounts to a breach of Article 2(4) of the UN Charter and a violation of the Territorial Integrity of the victim State. Thus, concerning the invasion of Kuwait by Iraqi armed forces under the administration of Saddam Hussein on August 2, 1990, the UN Security Council in Resolution 660 and 662 condemned the invasion and annexation of Kuwait by Iraq and, following continuous hesitance to withdraw its troops from the territory of Kuwait, invoked Chapter VII of the UN Charter in Resolution 678, authorising member States to use whatever means necessary to ensure the withdrawal of Iraqi troops from Kuwait, thus resulting in the Gulf War. Owing to the complexities which have arisen in the nature like of armed conflicts over the years, particularly in the area of non-international armed conflicts occurring within the territory of a State, the notion of “indirect” use of force has gained recognition. This traditionally takes the form of support given by a State to aid rebel groups fighting within the territory of another State against the government, or a State allowing its territory to be used by rebels or troops of another country for fighting a third State (Simma, 1994).32 Concerning this issue, the United Nations General Assembly in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States33 provided specifications regarding the prohibition on the indirect use of force, stating thus: Every State has the duty to has to refrain from organizing or encouraging the organization of irregular forces or armed bands including mercenaries, for an incursion into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.34 The provisions of the Declaration on the Principles of International Law supra were affirmed by the ICJ in its decision in Nicaragua v. the United States of America (International Court of Justice, 1986).35 On the allegations put forward by Nicaragua that the United States government had mined its shores, armed, trained and financed the Contras, a rebel group fighting against the socialist government of Nicaragua, the ICJ found that the United States of America had: …acted against the Republic of Nicaragua, in breach of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce.36 The ICJ also adopted the same line of judicial thought in DRC v. Congo 9 (I.C.J, 2005)37 were where it held that Uganda, by providing training and military support to the MLC, an irregular force fighting against the DRC government, had violated the sovereignty and also the territorial integrity of the DRC. The Court averred further stating: Uganda’s actions equally constituted an interference in the internal affairs of the DRC and in the civil war there raging. The unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter.38 With regards to the use of other non-aggressive means of indirect force, the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty39 provides: No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State. The prohibition of the use of force not only applies to the direct or indirect use of armed force on the territory of a State, but it also precludes the use of armed force against the diplomatic premises (Diplomatic Relations),40 ship (The definition of Aggression)41, or aircraft (International Civil Aviation)42 belonging to and bearing the flag of a State. It is also apposite to note that Article 2(4) of the UN Charter prohibits the threat to use force. Concerning what would amount to a threat to use force, the ICJ in its advisory capacity gave its opinion on the matter to the General Assembly in the Legality of the Threat or Use of Nuclear Weapons (I.C.J, 1996).43 The Court declared that the notions of “threat” and “use” of force under Article 2(4) of the UN Charter, stand together in the same sense that if the use of force itself in a given case is illegal, the threat to use such force will likewise be illegal. As it is well understood that the sovereignty of a State extends beyond its land territories to include the adjacent waters in the case of a coastal State, and the airspace above its boundaries, international law also stipulates rules protecting the territorial waters and airspace of States. Concerning the former, the United Nations Convention on the Law of the Sea (hereafter referred to as UNCLOS) provides that the sovereignty of a State extends over 12 nautical miles from its baselines, called the territorial sea.44 Article 17 of UNCLOS recognizes the right of innocent passage of ships belonging to all States over the territorial sea of a State. This, however, excludes the internal waters of the State as they are within the unrestricted jurisdiction of the coastal State (Shaw, 2008).45 Notwithstanding the right of passage of foreign vessels, it is instructive to note that the passage of a foreign ship through the territorial sea of a State shall be deemed prejudicial to the peace, good order or security of the coastal State if it engages in any activity which amounts to a threat or use of force against the coastal State.46 Thus, in the Corfu Channel Case,47 it was determined by the ICJ that a mine sweeping minesweeping operation conducted by the Royal Navy of the United Kingdom, in the Corfu Channel within Albanian territorial waters, constituted a violation of Albanian sovereignty (I.C.J, 1949).48 Article 1 of the Convention on International Civil Aviation establishes the sovereignty of States over the airspace above its territory, and in the case of a coastal State, above its territorial sea (Territorial Sea, 1958).49 The vertical limit to which the airspace of a State extends is, however, at the time of preparing this thesis, undetermined in international law. This omission has led to debates over the delineation between State sovereignty and the outer space (Reinhardt, 2005).50 This matter, it appears, has been resolved by the Outer Space Treaty of 1967.51 Article II of the Outer Space Treaty provides, ; “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, through by means of use or occupation, or by any other means.” Thus, it can be inferred that the airspace of a State simply extends to the limits of the Earth’s atmosphere. With regards to the sovereignty of a State over its airspace, Article 3(c) of the Convention on International Civil Aviation provides, “No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with following the terms thereof.” Article 3(b) of the Convention on International Civil Aviation defines a state aircraft to include aircrafts used in military, customs and police services. This restriction also includes pilotless aircrafts such as drones.52 Thus, an unauthorized transit through the airspace of a State by a restricted aircraft belonging to another State shall be deemed to be a violation of its airspace and an infringement upon its territory. On the other hand, civilian aircrafts belonging to all States enjoy the right of innocent passage over the airspace of a State.53 International law protects the territorial integrity of States and likewise places an obligation on all to respect one another’s boundaries. This obligation exists both in customary international law and in the various treaty laws and regulations discussed above which establish the right of States over their territories and their inviolability. Thus, violation of these rules either through direct or indirect use of force constitutes not only an infringement on the territorial integrity of States but a violation of international law. 2.3 EXISTING BILATERAL AND MULTILATERAL AGREEMENTS BETWEEN RUSSIA AND UKRAINE ON THE PRINCIPLE OF TERRITORIAL INTEGRITY The concept of territorial integrity has been incorporated into a large number of multilateral and bilateral treaties since its incorporation into the UN Charter. With regards to the relations between Russia and Ukraine, both sovereign States have bound themselves under individual treaty laws to respect their sovereignty and territorial integrity. In the Helsinki Final Act of 1975 ratified by many a number of European nations, all party States reaffirmed the inviolability and territorial integrity of one another’s territories. Quite Sspecifically, Part 1(a) Principle III states: The participating States regard as inviolable all one another's frontiers as well as the frontiers of all States in Europe and therefore they will refrain now and in the future from assaulting these frontiers. Accordingly, they will also refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating State. Principle IV likewise provides: The participating States will respect the territorial integrity of each of the participating States. Accordingly, they will refrain from any action inconsistent with the purposes and principles of the Charter of the United Nations against the territorial integrity, political independence or the unity of any participating State, and in particular from any such action constituting a threat or use of force. The participating States will likewise refrain from making each other's territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition using by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal. Further still, in the Budapest Memorandum of 1994 between the United States of America, Russia, and the United Kingdom, all States in recognition of Ukraine’s accession to the treaty on the Non-proliferation of Nuclear Weapons, avowed to respect the independence and sovereignty and the existing borders of Ukraine.54 Additionally, Paragraph 2 of the Budapest Memorandum provides: The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland, reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defence or otherwise following in accordance with the Charter of the United Nations. More significant, however, is the bilateral Treaty on Friendship, Cooperation, and Partnership of 1997 between Ukraine and Russia. Following the dissolution of the Soviet Union, new independent States arose out of its old republics one of which was the independent State of Ukraine. The demise of the Soviet Union inevitably resulted in a redefinition of existing boundaries at the time between the newly independent States. The Russian Federation which declared itself as a successor to the Soviet Union, as a result, lost considerable portions of its territories (Stewart, 1997).55 But of a major loss to Russia was control over the naval bases of the Black Sea in the Crimean peninsula which had become soldered into the territory of Ukraine following the dissolution of the Soviet Union. As such, access to the Black Sea fleet as well the need to protect the large number of ethnic Russians domiciled in Ukraine made the nation a national security interest to Russia. Ukraine too also possessed similar interests in Russia. For the most part, Ukraine depends on Russia for energy and supply of equipment parts for its industrial complexes.56 Thus, due to the mutual need for cooperation, it became pertinent for partnership relations to be established between both nations. On May 31, 1997, this need was formally recognized when Russian President Boris Yeltsin and Ukrainian President Leonid Kuchma met in Kiev to sign the Treaty on Friendship, Cooperation, and Partnership. Article 2 of the Treaty provides: The High Contracting Parties, following in accordance with the provisions of the UN Charter and the obligations under the Final Act of the Council for the Security and Collaboration in Europe, shall respect each other’s territorial integrity, and confirm the inviolability of the existing borders between them. In addition, Also, Article 3 states: The High Contracting Parties shall construct their relations with each other on the basis of based on the principles of mutual respect for sovereign equality, territorial integrity, the inviolability of borders, the peaceful settlement of disputes, the non-application of force, including economic and other means of pressure, the right of peoples to decide their own fates freely, non-intervention in internal affairs, the upholding of human rights and the basic freedoms, collaboration among nations, and the conscientious fulfilment of international obligations assumed, as well as other generally accepted norms of international law.57 Through the ratification of the treaty, Russia formally gave recognition to Ukraine as an independent State. Both nations also committed themselves to abstain from the direct and indirect use of force as a means of dispute settlement, reaffirming the terms of the Helsinki Final Act which they both sanctioned under the defunct Soviet Union. Most importantly, they acknowledged the inviolability of their borders and bound themselves to respect each other’s territorial integrity. The terms of the treaty also included the right of self-determination of peoples and the respect of their fundamental human rights. The treaty thus carved a foundation for diplomatic relations between both Russia and Ukraine. CHAPTER THREE THE ANNEXATION OF THE CRIMEAN PENINSULA 3.0 INTRODUCTION On February 20, 2014, unmarked soldiers in green army uniforms occupied and took control of key areas within Crimea. This incident was preceded by civil unrest from pro-Russian demonstrators demanding for the secession of Crimea from Ukraine. But before prior to these events, the Crimean peninsula has long been plagued by warfare and incessant attempts by successive empires to gain control of the peninsula. This chapter delves back in time into the turbulent history of Crimea down to contemporary times and gives an outline of the series of events which culminated in the secession and eventual annexation of Crimea. 3.1 HISTORICAL BACKGROUND OF THE CRIMEAN PENINSULA The Crimean Peninsula is located south of the Ukrainian region of Kherson and west of the Russian region of Kuban. It is almost completely surrounded by the Black Sea and the Sea of Azoz but is, however, connected to Ukraine by the Isthmus of Perekop and separated from Russia by the Strait of Kerch.58 Crimea is populated by a mix of ethnic groups owing to its history. According to the 2001 Ukrainian population census, 58.5% of the population of Crimea are ethnic Russians, 24.4% are ethnic Ukrainians and 12.1% are Crimean Tatars.59 The peninsula is Figure 1: Map of the Crimean Peninsula also home to a minority population of Belarusians, Armenians, Jews, Bulgarians, Germans, and Greeks.60 Known in ancient times as Tauris, named by the Greeks after its inhabitants, the Crimean Peninsula was once home to Tauric tribes who lived in Southern Crimea and later to Scythians who invaded and absorbed them.61 In the 5th century BC, Greek settlers from Miletus and Heraclea Pontica established colonies along the Black Sea coast and founded the sea ports of Chersonesos and Kerkinitida which are now the modern-day cities of Sevastopol and Yevpatoria. The Greeks also settled in eastern Crimea and established the Bosporan Kingdom.62 The peninsula served as an important source of wheat export and fishing to the Greeks. In the 1st Century AD the Romans, under the command of Pompey, invaded the Bosporan Kingdom in the war against Mithridates VI and subdued the area claiming it as a protectorate (The Bosporan Kingdom, 2009).63 They set up the first set of naval bases at Chersonesos and stationed legions at Charax. From the 3rd to 8th century, Crimea was invaded and occupied successively by different kingdoms, first by the Goths in 250 AD, the Huns in 376 AD, the Bulgars from 4th to 8th century, and the Khazar Empire in the 8th century. For the later centuries, control for the peninsula was a constant tug of war between the Byzantine Empire successor to the fallen Roman Empire, the Khazar Empire and the Kievan Rus (Timeline of The History of Crimea, 2017).64 In the 13th century, Eastern Europe was invaded by a new vicious force from East Asia. The Mongols, under the command of Batu Khan, grandson of Genghis Khan, led a lightning conquest of Eastern Europe, plundering and subduing city after city. The Mongols also conducted a series of successful campaigns against the territories of the Kievan Rus (Mongol Invasion of Rus, 2017)65. By the start of the 13th century, the principalities of the Kievan Rus had almost completely fragmented which aided their conquest by the Mongols. Thus all territories of the Kievan Rus became an expansion of the Mongol Empire.66 The fragmentation of the Kievan Rus would, however, prove instrumental in the development of European history as former settlers in its provinces migrated to new territories, creating new settlements from which the modern States of Ukraine, Belarus and Russia trace their ancestry.67 The eastern area of Crimea which had been acquired by the Kievan Rus was subjugated by the Golden Horde of the Mongol Empire, an army comprised of the Tatars, a collection of nomadic tribes who had been equally subjugated and assimilated under the banner of the Mongol Army.68 Eastern Crimea thus became part of the huge Mongol Empire, stretching as far as China to Moscow. The Golden Horde established the city of Qirim now modern-day Staryi Krym as its capital.69 It is believed that the name “Crimea” originated from Qirim and gradually replaced the use of the old name of Tauris.70 The Tatars who settled in Crimea became known as the Crimean Tatars and in 1449 established the Crimean Khanate which subsequently became an independent State state under the rule of Haci I Giray. The Crimean Khans, however, did not possess full territorial hold of the peninsula as the Genoese had control of the South West of Crimea. This however changed in 1475 when the Ottoman Empire decimated the whole of Crimea and established the Crimean Khanate as a protectorate of the region in recognition of their ancestry to the great Mongol leader Genghis Khan (Inalcik, 1995).71 Notwithstanding their subjugation by the Ottoman Empire, the Crimean Khanate enjoyed some level of independence and was treated more as allies than subjects (Haiworonski, 2017).72 For the later years up until the 18th century, the Crimean Khanate sustained control of the peninsula due to their alliance with the Ottoman Empire and maintained a massive slave trade with them by conducting raids into Poland-Lithuania and Muscovy, enslaving whom they could capture and exporting an estimated number of about 2 million slaves (Kizilov, 2007).73 By the late 18th century, control of Crimea would once again switch hands. Russia, which by the time had emerged as a formidable empire, had been embroiled in conflict with the Crimean Tartars to repel their incessant slave-hunt raids (Russo-Turkish Wars of the 17th - 19th Century, 2017).74 In the first Russo-Turkish War from 1735 to 1739, the Russians successfully penetrated the peninsula but pulled back due to an outbreak of the disease in its camp and short supplies (Stone, 2006). 75 This nonetheless foreshadowed the imminent end of the Ottoman Empire’s hold over Crimea. The epoch moment in the history of Crimea came after the second Russo-Turkish War from 1768 to 1774. The Russians under the rule of Empress Catherine II led a resounding victory against the Ottoman Empire and their ally the Crimean Khans. The war was brought came to an end with the signing of the Peace Treaty of Kucuk Kaynarca in 1774. Under the treaty, the Ottoman Empire and Russia agreed to recognize the complete independence of the Crimean Khanate. Russia was also given the dominance of the Azov and Kerch ports, allowing the country direct access to the Black Sea (Empire in Asia-A new Global History, 2017).76 In additionAlso, Russia gained official status of protector of the Orthodox Christians living in the Ottoman Empire. The peace treaty was, however, short-lived as the Crimean Khan Delvet Giray, in defiance of the treaty, sent envoys to the Ottoman Empire in 1775 requesting the re-negotiation of the Crimean Khanate as a protectorate of the empire (Fisher, 1978).77 Russia responded by deposing Devlet Giray and installing a new Khan, Sahin Giray, who proved more amenable to the will of the Russian Empire. The new Khan instituted changes within the political order of Crimea. He established a Russian-styled autocracy by centralising power, a change which was greatly despised by the Crimean Tatars. At the bidding of Catherine II, Sahin Giray permitted migrants from Russia to settle in Crimea. (Fisher, 1978)78 These actions led to a rebellion of the Tatars against the Khan and a final attempt by the Ottoman Empire to regain control over the peninsula. The Russians were, however, swift to repress the rebellion and in 1779 the Ottomans signed the Treaty of Anyalikavak in which they recognised Sahin Giray as Khan of Crimea, promised no further intervention in Crimea once again securing the independence of the Crimean Khanate (Treaty of Anyalikavak, 2017).79 However, the desire for absolute control of the peninsula and its potential strategic advantages to the empire would prove too irresistible for the Tsarina of Russia. Hence in 1783, Empress Catherine II, in clear disregard of the terms of the Treaty of Kucuk Kaynarca recognising the independence of the Crimean Khanate, declared the first historical annexation of Crimea (The First Annexation of Crimea, 2017).80 To maintain her rule over the peninsula, Empress Catherine encouraged the emigration of Russians and “ethnic-cousins” the Germans, Ukrainians, Bulgarians, and Armenians to settle in the peninsula as a balance to the mostly anti-Russian Tatar population. Catherine II also issued instructions to build the fortress of Sevastopol and set up the Black Sea Fleet in defence of the peninsula. The establishment of a port in the Black Sea was of strategic importance for Russia as most of its ports freeze in winter and it was essential for trading and to support a strong navy.81 With the dissolution of the Russian Empire in 1917 and the creation of the Russian Soviet Federative Socialist Republic, Crimea was reorganised as an autonomous republic of the Russian SFSR in 1921. During the Second World War, most of the peninsula fell briefly under the occupation of the Nazi army in the course of their invasion of the Soviet Union. The Crimean Jews during this period would be hunted and murdered as part of the Holocaust campaign of the Nazi regime. The peninsula was, however, liberated by the Red Army of the Soviet Union in 1944. In May of 1944, Soviet Leader leader Joseph Stalin ordered the mass deportation of Crimean Tatars as collective punishment for their alleged collusion with the Nazi army in the rounding up and execution of Jews. However, this greatly fogged the reality of things as only a relative number of the Tatar population had indeed taken part in the anti-Jewish manhunts. Nonetheless, the entire Tatar population of the peninsula were deported en masse to Central Asia, mainly to Uzbekistan, thus resulting in the drastic reduction of the population of Tatars in the peninsula. Not until after the dissolution of the Soviet Union would the Crimean Tatars be allowed to return back to the peninsula (Deportation, genocide, and Russia’s War. 2017).82 By the end of the Second World War, Crimea had lost its autonomy and was converted into an Oblast (province) of the Russian SFSR. In light of its military significance, Sevastopol was has been declared a closed city state with restricted travel access and its own administration. The Crimean peninsula remained a part of the territory of Russia for nearly 200 years until February 19, 1954 when, in contrast to its conflict-ridden history, it was amicably handed over to