俄羅斯承認Donetsk與Luhansk，不合國際法

Russian Recognition Of Donetsk And Luhansk: Legal Analysis    Samuel Pitchford＠Human Rights Pulse 20220302

On 21 February 2022, Russia recognised Donetsk and Luhansk as independent states. The Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR) are self-proclaimed states in Eastern Ukraine. Following Russia’s annexation of Crimea in March 2014, the mostly Russian-speaking areas have sought to break away from Ukraine. Russian recognition of the breakaway republics was widely condemned as violating international law (here, here, and here). No other United Nations member recognises either the DPR or LPR.

ARE DONETSK AND LUHANSK STATES?

Legal scholars usually define the state as a person in international law possessing four criteria: (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter into relations with other states. These criteria were codified in article 1 of the Montevideo “Convention on the Rights and Duties of States,” which was a restatement of customary international law. Article 3 of the Montevideo Convention continues that “the political existence of the state is independent of recognition by the other states”. The existence of a state, therefore, is a question of fact.

The DPR and LPR both meet criteria (a), (b) and (c). However, it is not obvious that either republic is politically independent of Moscow. Many DPR and LPR residents hold Russian citizenship as Russian state media boasts, and around 16,000 are members of Russia’s ruling United Russia Party. Russian politicians have taken up positions in the separatist governments. The current leader of the DPR has even stated he wants it to unite with Russia.

An entity lacks the genuine capacity to enter into relations with states if it lacks political independence. Hong Kong, for example, has a permanent population, a defined territory, and a government—the HKSAR. It has also signed trade agreements with various states. However, the city is accountable to China and its relations with states is subject to Chinese approval. It, therefore, is not a state. It appears that DPR and LPR are likewise beholden to Russia. They cannot enter relations with states without Russian approval and, therefore, are not in fact states.

WAS RUSSIAN RECOGNITION LEGAL?

States bear rights and duties in international law denied to non-states. However, a state may possess the above criteria yet not be recognised by other states as a state in international law. Taiwan is the most notable example. Lassa Oppenheim, father of modern international law, wrote that a state “becomes an International Person through recognition only and exclusively.”

Oppenheim's statement seems to contradict article 3 of the Montevideo Convention. Legal scholars continue to debate whether a state can acquire true statehood without recognition by other states. However, the contradiction is only apparent. There is a distinction between the state as a fact and the state as an international legal personality. An entity first becomes a state in fact by meeting the Montevideo criteria, then it must assume the duties of a state (including obeying international law). Gradually, other states recognise the entity as owing the duties it has voluntarily assumed and treat it as such. As article 6 of the Montevideo Convention explains, recognition of a state:

“merely signifies that the state which recognises it accepts the personality of the other with all the rights and duties determined by international law”.

There is nothing inherently unlawful in recognising that an entity is a state in fact and has assumed the duties of a state in international law. The recognising state recognises nothing save that the nascent state must fulfill the duties of a state and should be afforded the rights peculiar to states to do so.

Russia’s recognition, however, is illegal. If the breakaway republics are ultimately beholden to Russia, then they are not states in fact and Russia knew this when it recognised their statehood. This is an abuse of customary international law.

Both the UN Charter and customary international law prohibit states from interfering in the internal affairs of other states. This is currently cited as one reason why Russia’s recognition of DPR and LPR is illegal as both republics claim Ukrainian territory as their own. Recognition while generally lawful may constitute unlawful interference where it is premature. Premature recognition is defined nowhere in international law. Arguably, however, a state recognising an entity it knows lacks all the criteria of statehood is by definition premature.

DOES KOSOVO SET A PRECEDENT FOR RECOGNITION OF DONETSK AND LUHANSK?

Were the DPR and LPR truly independent, Russia’s recognition might still be illegal. Eminent international jurist James Crawford argues that states created by illegal use of force are themselves illegal since the UN Charter prohibits the use of force in international relations. He points to state practice: "no new state formed since 1945 outside the colonial context has been admitted to the United Nations over the opposition of the predecessor state”.

Russia cites Kosovo as a precedent for secession by the breakaway republics and its recognition of them. Kosovo was also cited by Russian-backed South Ossetia and Abkhazia as precedent for their secession from Georgia. In 2008 Kosovo unilaterally declared independence from Serbia. Over half of UN member states now recognise Kosovar independence, though Kosovo is not a UN member itself. Serbia continues to claim Kosovo as its own.

The legality of Kosovar secession is dubious. The International Court of Justice issued an advisory opinion in 2010, which held that Kosovo’s declaration of independence did not breach international law. However, the opinion was silent on Kosovar statehood. In stark contrast, Catalonia’s abortive secession in 2016 was universally condemned. Recent state practice is, therefore, still opposed to recognition of breakaway states prior to the acquiescence of the predecessor state.

MINSK AGREEMENTS

The Minsk agreements are two international treaties signed by Ukraine, Russia, the DPR and LPR, France, and Germany. It was hoped the agreements would end fighting in Donetsk and Luhansk and prevent their secession. The agreements did not recognise the independence of the DPR or LPR. Minsk II required control of the state border to be restored to Ukraine, implicitly acknowledging Ukrainian sovereignty over Donetsk and Luhansk. Russian recognition of the DPR and LPR cuts against its earlier recognition of Ukrainian sovereignty in Minsk II.

Thus, Donetsk and Luhansk remain part of Ukrainian territory in international law. Russia’s recognition of both as independent is unlawful. Any invasion based on securing or protecting the independence of either self-proclaimed republic is also unlawful.