JURIST Guest Columnist Larry Eaker of the American University of Paris discusses the EU’s position on the Ukraine Crisis …

“United in Diversity”—The Official EU Motto

The sweeping expansion of the EU over the past 20 years has seemed to hit its limits—at least for the immediate future. After absorbing 11 eastern European nations since 2004, including three Baltic countries from the former Soviet Union, the EU Commission President Jean-Claude Juncker has recently called for a five-year freeze on any further enlargement. Not only can this temporary pause in EU enlargement be comprehended in light of serious labor market disruptions, Roma circulation problems, corruption and rule of law issues and EU external borders crises—to mention just a few of the disputes stemming from this move eastward—but such a position can be more fully understood when considering that the EU is now bumping up against a very rough neighborhood to the east. As is well understood by the EU’s institutions and the foreign policy officials of the 28 member states, the Russian Federation has made it clear that further EU expansion involving former members of the Soviet Union will be met with strong opposition—including a push back by the Russian government to protect alleged interests of Russian minorities in nations to the west of her borders. The clearest example of this growing clash over expansionary interests in Eastern Europe is, of course, the on-going conflict in Ukraine. The massive demonstrations in Kiev’s Maidan Square [PDF] beginning in November 2013 in favor of the move towards EU membership were enough to make any rabid Europhile blush. From a legalistic point of view, it can be said that the Ukrainian people’s actions to force their Victor Yanukovych-led government to sign an Association Agreement with the EU were merely reflecting their international law recognized right to what is referred to as internal self-determination—as developed in Article 1(2) of the UN Charter and Common Article 1 of the 1966 ICCPR and ICESCR. The subsequent overthrow of the Yanukovych government was not considered in the Kremlin, however, as the legitimate act of the peoples of Ukraine in fulfillment of their right to self-determination. On the contrary, the Russian government loudly protested against an illegal change in government in Ukraine; as a coup d’état, led by fascists supported by the EU and the US.

This throwback to the Cold War period was, however, just the first Russian shot across the EU’s bow. Unfortunately for the new Ukrainian government and her supporters, the Ukrainian peoples then discovered the downside to the cherished international law principle of self-determination; namely, the right of peoples to self-determine themselves right out of your existing nation-state in direct conflict to the state’s right to maintain its territorial integrity. The Crimean declaration of independence and subsequent referendum vote to exit Ukraine was quickly followed by Russian annexation in March 2014. And if that was not shocking enough for EU sensitivities, rebels within the eastern Ukraine provinces of Donetsk and Luhansk then proceeded—with not very well concealed Russian support—to engage in open hostilities with the Ukrainian government in order to fully realize the establishment of their newly declared independent republics of Donetsk and Luhansk (now joined within the Novorossiya confederation). Although this so-called right of external self-determination is rather vaguely defined and greatly constrained by modern international law interpretations, as discussed in the famous Quebec case decided by the Canadian Supreme Court in 1998, it remains, nevertheless, the claimed legal foundation of secessionist movements throughout the world. Furthermore, with the ICJ in her much debated Kosovo case opining that there exists in international law no clear prohibition to declarations of independence by the peoples within states—thus, confining the scope of the principle of territorial integrity under Article 2(4) of the UN Charter to “relations between states”—the court has, in effect, left this issue to the realm of domestic constitutional law practice. Thus, the EU is faced with a dilemma in its actions dealing with the Ukrainian crisis—how to avoid getting cut by this double-edged sword of self-determination.

The EU’s Response to Self-Determination Movements in Ukraine—Applying the International Law Framework

The “Westphalian” international law position in favor of state sovereignty and territorial integrity can be considered well-founded in light of the instability and wars engendered by the many secessionist movements experienced worldwide since World War II. The EU has been witness, unfortunately, to continuous secessionist movements and bloody wars to the east of its borders since the dissolution of the Soviet Union in 1991. It is estimated by the International Center for Transnational Justice that as many as 140,000 persons lost their lives in the Yugoslavian wars during the 1990’s. Although the figures are impossible to verify, it has been claimed by the former leader of the Chechen Parliament that up to 160,000 people perished in the two Chechen conflicts. In addition, the Council of Europe reported over 30,000 displaced persons stemming from the Russian-supported South Ossetian and Abkhazian secessions from Georgia in 2008. Whatever the figures are, the EU has to be highly concerned over this recent history of European instability propelled by extreme nationalism. And the current situation in Ukraine, in spite of the declared cease-fire, looks very bleak. The death toll in the on-going Ukrainian conflict has now reached over 6,000, according to a recent report by the UN Human Rights Office.

Although not considered as a nation-state under pubic international law, the EU does exercise powers akin to a nation-state—especially in the field of foreign affairs (or in “Eurospeak,” external actions). It enjoys legal personality and shares power over foreign and security policy with its member states. According to Article 21 of the Treaty on European Union (TEU), the EU’s external actions are to be guided by the principles of democracy, the rule of law, protection of human rights and fundamental freedoms and “respect for the principles of the United Nations Charter and international law.” Accordingly, the EU itself (in addition to the individual 28 member states’ UN Charter commitments) is bound in pursuing such external actions to respect both the territorial integrity and self-determination principles which underpin the nation-state system and modern human rights protection framework.

While the right to formally recognize claimed states stemming from these recent European wars is left to the sovereign power of individual EU member states as a matter of EU law, various EU institutions do carry out a form of de facto recognition by the supra-national organization itself. For example, the EU Parliament in March 2012 passed a resolution urging the five EU member states to refuse to recognize Kosovo to do such. And, while the fact of recognition alone does not constitute de jure statehood under modern principles of international law, the admission to EU membership—as a form of collective recognition—goes a long way in solidifying an entity’s ability to function within the world of international relations. The EU fully understands this “legal” attraction of EU membership for states and fledgling entities to its east and, accordingly, has adopted what is referred to as an “Europeanization” policy. This policy is structured into the EU’s European Neighborhood Policy created in 2004 to “achieve the closest possible political association and the greatest possible degree of economic integration” with 16 of the EU’s closest neighbors. And, more specifically for her eastern neighbors including Ukraine, the EU launched in 2009 an Eastern Partnership. Pursuant to this Eastern Partnership, the EU signed an Association Agreement with Ukraine in June 2014. While not promising EU membership, such agreements set forth the roadmap for states seeking eventual EU membership to follow and, in the case of Ukraine, included a “Deep and Comprehensive Free Trade Area”—thus opening up markets between Ukraine and the 28 EU member states. It was this proposed EU-Ukraine Association Agreement which was so strongly contested by the Russian government, as being in direct conflict with the Russian proposed Eurasian Union agreement. But the dilemma is that closer association with Ukraine presents the EU with serious problems concerning the breakup of the state and status of such breakaway regions—reminiscent of the Cyprus situation.

Resolving the Territorial Integrity vs. Self-Determination Dilemma in Ukraine

Faced with this dilemma, the EU has clearly come down on the side of Ukrainian territorial integrity. In their “Conclusions on Ukraine” [PDF] adopted by the European Council on March 20, 2014, following the Crimean annexation, the member states unanimously committed themselves to “uphold the sovereignty and territorial integrity of Ukraine” and announced their decision not to recognize the “illegal referendum” and subsequent “illegal annexation” by Russia. This statement of EU support for Ukraine has been followed up by a series of Council decisions imposing both individual asset freezes and visa restrictions on Russian companies and individuals and specific sectoral sanctions. And although the UN Security Council has not been able to adopt any condemning resolutions dealing with the Crimean annexation, it should be noted that the EU’s delegation to the UN General Assembly vigorously supported that UN body’s resolution of March 27, 2014, condemning the referendum and calling upon states not to recognize “any alteration to the status of the Autonomous Republic of Crimea.”

Beyond these condemning EU Council Conclusions on Ukraine and this UN General Assembly resolution it is important to recognize that the EU Commission participates in the Council of Europe’s European Commission for Democracy through Law, or Venice Commission, which provides non-binding legal advice to 60 member states on issues concerning, inter alia, secession and European constitutional principles. On March 14, 2014, the Venice Commission issued its draft opinion declaring the Autonomous Republic of Crimea’s decision to organize a referendum on becoming a constituent territory of the Russian Federation to be contrary to the Ukrainian constitution. In addition, the Venice Commission questioned whether the referendum scheduled for March 16th itself “could be held in compliance with international standards”—citing, in particular, concerns over the massive presence of paramilitary forces, the earlier declaration of independence by the Crimean parliament and concerns expressed by the Organization for Security and Cooperation in Europe with respect to freedom of expression in Crimea. Thus, the EU at least attempts to consider issues concerning self-determination and secessionist disputes within a legal—and not only political—framework.

Accordingly, one may conclude that the EU is tightly bound within a web of both international and EU law rules and procedures that will, hopefully, lead her to peacefully and equitably resolve the self-determination disputes now raging in Ukraine. Thankfully, it appears that the EU’s approach to the Ukrainian crisis is, in fact, well encased within a solid system based upon the rule of law and not power politics. Who knows? This just might lead to unity in diversity.

What more can international law advocates ask for?

Larry Eaker is an associate professor at the American University of Paris. In France, Eaker has served as a legal consultant to the OECD on international environmental law matters and worked with various French law firms on international law cases. His teaching areas include public international law and international business law subjects.

Suggested citation: Larry Eaker, The EU Confronts the Ukraine Crisis; Carefully Handling the double-edge Sword of Self-Determination, JURIST – Academic Commentary, May 20, 2015, http://jurist.org/academic/2015/05/Larry-Eaker-self-determination.php.