The role of the constitutional court of Russian-federation in annexation of Crimea-2014

The doctrine of obligatory non-recognition provides that states are under an obligation not to recognise, through individual or collective acts, the purported statehood of an effective territorial entity created in violation of one or more fundamental norms of international law. This rationale underlies the Stimson Doctrine that was used as a justification for states not to recognise the annexation of the Baltic States by the Soviet Union. This rationale is also expressed in the International Law Commission’s Article 41 of the Draft Articles on State Responsibility. The obligation is a norm of customary international law and aims at preventing that a violation of international law becomes validated by means of recognition. It contains a “minimum resistance” and “a continuous challenge to a legal wrong”. The obligation arises where a territorial entity has been created in violation of an erga omnes norm, especially by violating the prohibition of the use of force, by violating the right to self-determination, or by violating the prohibition of systematic racial discrimination.

The “Treaty on the Accession of the Republic of Crimea to the Russian Federation” was referred to the Constitutional Court on 18 March 2014 at 17:00.16 The Constitutional Court of the Russian Federation issued a unanimous judgment (the opinion) on the constitutionality of this “Treaty” in less than a day after the “Treaty” was referred to it (actually within one night), i.e. 19 March 2014. 17 Such procedural expediency (dealing with the case actually per night) is not common for any Court, including the Constitutional Court of the Russian Federation, and raises a reasonable doubt about the independence of the Russian Constitutional Court in dealing with the requested opinion.

On-the-role-of-the-constitutional-court-of-the-Russian-federation-in-the-annexation-of-Crimea

Introduction

On 21 March 2014, the Russian Federation annexed the Republic of Crimea and the city of Sevastopol. This occurred after a series of events which took place in less than a month, and in which the Russian armed forces were clearly involved. The Constitutional Court of the Russian Federation received a request for an opinion on the constitutionality of the treaty on the incorporation of Crimea on 18 March 2014, and issued its opinion on the very next day, on 19 March 2014. The annexation of Crimea was completed on 21 March 2014. The Court’s opinion was a direct instrument facilitating the internal legalisation of the annexation of part of the Ukrainian territory, which is an international crime. That is an unprecedented event, since, for the first time in history, the whole constitutional court was used for the commission of the gravest international crime – the crime of aggression.

International Consensus regarding the Illegality of the Annexation of Crimea

The occupation and annexation of Crimea were denounced by the international community as a grave breach of the ius cogens obligation of non-use of force (i.e. aggression). Such a breach triggers a corresponding international obligation erga omnes not to recognise the purported statehood of an effective territorial entity created in violation of the fundamental norm of international law, as well as not to recognise any territorial acquisition that is a result of that breach.