I am proud of the Australian judicial system, particularly their independence and separation from political and other corrupt powers attempting to influence decisions. Law is to serve people, to ensure justice and my passion for this righteousness was the reason why I studied human rights law. I have never been more proud then when I heard that Cardinal George Pell, Australia’s most senior Catholic Church representative and now former prefect of the Secretariat for the Economy for the Vatican once making him one of the most powerful religious figures has been found guilty of sexually abusing young children. What does this precedent now mean for not only all the victims of sexual abuse but also for Catholicism? Read More
International obligations have been developed to assist States – particularly vulnerable countries in the developing world – to further develop domestic legislation that will protect them from potential abuse particularly from multinational cooperations, such as the Maastricht Guidelines that explains the obligations of the State to adhere to Economic, Social and Cultural Rights as explicated in the international covenants. Read More
Peak hour traffic. An endless array of coloured helmets litter the streets, smoke coughing out of the exhaust of an old bus filled with tired faces, a frowning man with his forehead pasted against the dirty window stares out aimlessly at the hundreds of scooters honking their way through the busy street. Two young girls play on the footpath mimicking the others’ moves completely oblivious to the chaos surrounding them. It is easy to zone out, to shut the overwhelming unease that the thousands upon thousands can make you feel, like a person rescued by their imagination as they drift off into a day dream. Like me. I look out at the various clothing stores we crawl past on my way to the airport, thinking about what I need in my wardrobe for work to look a little more professional. Maybe a vintage midi-skirt, that pair of black jeans I have at home that would go well with the white shirt worn by the manikin, perhaps add some blue earrings and red shoes? Zone out from the fact that just before I caught this taxi I saw an elderly Australian man at the hotel lobby, his spotted, plump hands tickling the waist of a young Vietnamese girl as he commented about the bad service from staff, reminding me that underneath the millions in this Vietnamese megacity lies a disturbing reality of sex tourism that is causally linked to sexual exploitation. His yellow stained teeth and hardened belly impregnated by the constant consumption of alcohol that protrudes out and over the belt of his pants sends both shivers down my spine and a desire to kick him and protectively whisk her away from his dishonourable nature. Read More
There is a great deal anti-Semitism around, even today. A great deal. A quick peruse through social media and you’ll find scores of people posting theories and postulates that iterates previous systemic racism against the Jewish community (i.e. taking over the world), some doing it so well that you have to read between the lines to realise the embedded racism that methodically attempts to generate fear and hatred (‘we give to them and we care for them, but what do they do for us?’). It is no wonder Benjamin Netanyahu’ diplomatic antagonism against the world is so believable and indeed endorsed by the Likud Party that it has penetrated deep into the executive and legislative divisions within Israel. Read More
The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are both introduced with articles on the right to self-determination. The principle of self-determination as jus cogens or an indisputable norm in international law nevertheless remains ambiguous, particularly relating to the legality behind the principle within the context of contemporary international life. The development of the principle was initially intended on overcoming the human rights impact colonialism had on those subjected to its authority in addition to the impact of decolonisation and post-colonialism had to international stability, economic relations and security as clearly stated in General Assembly Resolution 1514. What is the relationship or distinction between State and Government and does the state itself possess the qualifications as embodied by the Montevideo Convention on the Rights and Duties of States if indeed such qualifications epitomise a universal model of statehood and autonomy? This intricacy is further debilitated when entrenched with ideological discourse as a tool to construct hegemonic regimes rather than adhering to the constitutive conditions within international public law. This complexity is undoubtedly exposed with the annexation of Crimea [territory of the Ukraine] by Russian authorities, undermining the regulations of the United Nations Charter and of jus ad bellum or the criteria that determines the legality of warfare and the use of force, along with the prohibitions and the application of self-determination contained by the authority of international law. From the ousting of Viktor Yanukovych in Ukraine, to the referendum in Crimea that seemingly found the majority of the population in favour of becoming subjects of Russia, to the eventual deployment of Russian military personnel and annexation of the region with the intent of protecting its subjects from pro-Ukrainian extremists, is there a breach of Russia’ international obligations or is there credibility that can be considered legally tenable? It is the intention of this blog post on this gorgeous albeit cold Sunday afternoon to focus on the situation in Crimea by ascertaining Russia’ legal obligations regarding territorial integrity along with use of force, utilising a comparative approach on Kosovo and the Former Yugoslavia to ascertain the meaning of self-determination in international public law.
The principle of self-determination in international law embodies various doctrines such as sovereignty, statehood, territorial integrity and a number of other principles that negotiate and regulate the practice of international relations between existing and emerging nation-states. The onslaught of the first half of the twentieth century necessitated international corporation to prevent any repetition of violence, annexation or conquests and thus the development of the United Nations as an international body to deliver such measures and regulations was established. Notwithstanding the original and albeit failed attempt to institute the conditions that encourage peaceful, secure relations through the League of Nations, the United Nations with its principle organs has successfully delegated compulsory resolutions with the intent of managing and recommending international peace and cooperation. The problem of effectiveness of enforcing international law, however, remains questionable though enforcement mechanisms that negotiate sustainable processes or sanctions to safeguard human rights principles that encourage changes to domestic laws and other initiatives that bind international law into constitutive characteristics and customary principles is gaining strength. “Nevertheless, there remains vast domains in which the central enforcement of international law is largely non-existent or, at best, sporadic.” A clear example of this failure can be seen with the collapse of Yugoslavia during the last decade of the twentieth century, whereby notoriety of the UN Peacekeepers failing to protect the safe areas of Srebrenica ultimately led to the massacre of thousands of Bosniak boys and men.
The transition of the former Yugoslavia – contained by six socialist republics and two autonomous provinces of Kosovo and Vojvodina – has since exposed the miscarriage of international organisations to manage adequate responses to emergency situations, becoming the stimulus to modify and enhance the mechanisms that define and regulate the substantive criteria of the principle of self-determination and the conditions that define statehood. One particular aspect of this relies on the concept of territorial integrity and the modalities that outline the legal characteristics between dissolution and succession. According to the Montevideo Convention on the Rights and Duties of States 1933, a treaty that attempts to elucidate the general requirements within customary international law vis-à-vis statehood – the norms and exceptions of what frameworks self-determination, sovereignty and statehood – purports that a state as a person of international law should possess the qualification of a defined territory. “[A] state is defined as an entity with a defined territory and a permanent population under the control of its own government, which as the capacity to engage in diplomatic relations with other states.” Territorial integrity is contained in Article 2(4) of the UN Charter along with Principle IV (Territorial Integrity of States) of the Helsinki Final Act (1975) along with a number of bi- and multilateral agreements that declares duties including non-recognition of territorial acquisitions or special advantages obtained by force. Recognition as a criteria for statehood, the latter being the “plenary competence to perform acts, make treaties, and so on, in the international sphere,” that is sovereignty within a defined territory is legitimate when founded on the evidential criteria as inferred within international law. Northern Cyprus, for instance, is recognised by the United Nations as territory under occupation and an infringement of Cypriot sovereignty and conversely, the controversy regarding the unilateral declaration of independence of Kosovo from Serbia has raised a plethora of questions as to the legal precedent it has set particularly for the criteria of self-determination and de-jure recognition.
The lack of clarity regarding self-determination and the UN Charter invoked the Council of the European Union to establish an Arbitration Committee with Robert Batinter as president to answer pressing legal questions on subjects of concern related to the situation and ethnic violence advancing in Yugoslavia at the time, namely to be a source of guidelines vis-à-vis the establishment of new States in Europe. Opinions that were put forward to the Commission following an initial request made by Lord Carrington on the subject of secession on the Social Federative Republic of Yugoslavia, for which the Commission concluded that Yugoslavia was in the process of dissolution. This led to two vital opinions – for the intention of this subject – namely that of self-determination and the subject of borders. The determination of boundaries during the dissolution of the former Yugoslavia found the committee purporting through Opinion No. 3 of whether internal boundaries within the Former Yugoslavia are to be regarded as borders in public international law, the Commission responded purporting that whilst the external borders remained within the international principle of uti possidetis pursuant to the UN Charter and the Helsinki Accords – the latter being the inviolability of national borders vis-à-vis territorial integrity – internal borders were vindicated by the Constitution of the Socialist Federal Republic of Yugoslavia 1974. “Article 5 requires the consent of all republics and provinces before the borders of Yugoslavia can be altered,” which, during a period of conflict and dissolution is complex. Jurisdictionally, the consequences of the opinions by the Arbitration Committee proved a failure to ascertain the ultimate consequences the subject of international borders along nationalist or ideological can have to the security and safety of minorities. According to Peter Ragan, on closer inspection particularly following Opinion 11 of the Reports the Badinter Borders Principle should have been flexible enough to accommodate the impulse for secession rooted in ideological grounds and therefore more sophisticated measures could have prevented the likelihood of ethnic violence considering the lack of national homogeneity.
“The case of a multinational unit within a federation in which a majority national group resolves that the federal unit will secede, recognition of that unit within existing federal borders is, on the evidence of the secessions and recognition of Croatia and Bosnia-Hercegovina, likely to facilitate violent ‘ethnic cleansing’. The result will be either a nationally homogeneous state, or a de facto partition of the state along national lines. Croatia serves as an example of the former and Bosnia-Hercegovina is an example of the latter. The consequences of applying the Badinter Borders Principle were disastrous for the SFRY.”
It is perhaps essential to comparatively analyse ‘remedial secession’ under international law and its similarities or differences with the right to self-determination, namely the challenge of territorial integrity and the fragmentation of existing States vis-à-vis minority groups or peoples exercising their right to self-determination. International customary law on territorial integrity is reflected in the UN Charter however GA Res 1541/1960, whilst elucidating outcomes relating to self-determination purported that integration with another state is a rightful part of the application of self-determination. “Secession is the process by which a particular group seeks to separate itself from the State to which it belongs.” Accordingly, Crimean and Russian authorities allege themselves legally justified for claiming the right to secession following the referendum that found the majority voting in favour of becoming subject to Russian federal authority whilst the international community view it as an “illegal annexation that followed Russia’s use of force in contravention of international law.” International case law confirms that an adequate application of the principle of self-determination requires a democratic plebiscite or referendum. Nevertheless, according to domestic Ukrainian law, the referendum held in Crimea was illegal; that whilst the autonomous status of Crimea provides administrative independence and the capacity to hold referendums but only so related to domestic matters. The Constitution of Ukraine clearly states that territory of Ukraine “within its present border is indivisible and inviolable” with Crimea an inseparable part or constituent. Thus, a legal referendum would require a plebiscite involving all of Ukrainian territory, including Ukraine, and not just Crimea. In addition, regulations on how a referendum is to be held, particularly relating to the use of force whereby the presence of Russian military and control of public infrastructure during the plebiscite along with the language or wording of the question that ensures clarity to answer a mere ‘yes’ or ‘no’ was not correctly adhered to, particularly since the referendum asked two questions in breach of Venice Commission’s Code of Good Practice.
I am not sure how you are supposed to answer ‘yes’ or ‘no’ to the following?
- Are you in favour of the Autonomous Republic of Crimea reuniting with Russia as a constituent part of the Russian Federation? or
- Are you in favour of restoring the Constitution of the Republic of Crimea of 1992 and of Crimea’s status as part of Ukraine?”
The Russian authorities, in an attempt to justify the occupation of Crimea, claim the declaration of independence by Kosovo has set a legal precedent, confirmed during the Crimean proclamation of independence from the Ukraine in 2014, whereby “Putin referred to numerous Western states, which had recognised Kosovo’s right to self-determination… Putin presented a moral argument claiming that the same rights could not be denied to the people of Crimea.” It is true that the International Court of Justice decision pertaining to Kosovo failed to adequately address the question of secession and the consequences of the declaration of independence from Serbia instead “limited the scope of its opinion to the question of whether the declaration as such violated international law.” Many countries including Spain decidedly chose to not recognise Kosovo since it was clear that there existed a failure to reach an agreement followed by a U.N. Security Council resolution, which is a requirement for secession. Nevertheless, the ICJ clearly outlined the required processes vis-à-vis the legality and practice of independence with regards to international law. Acting Minister for Foreign Affairs of Ukraine Andrii Deshchytsia introduced a draft resolution recounting the referendum held in Crimea along with territorial integrity, whereby the referendum was officially declared by the United Nations to be invalid. The Declaration on Principles of International Law concerning Friendly Relations and Cooperation claims that “territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter.”
Historically, Crimea is known to be the hub of the White Army [anti-Bolshevik] during the Russian Revolution, where it retreated under the leadership of General Baron Peter Wrangel with the intent on developing a counteroffensive to defeat the onslaught of the Red Army [Bolsheviks] in 1920; by 1921 following orders by Vladimir Lenin, tens of thousands of adherents of the White Movement that failed to escape Crimea to Istanbul or Europe were summarily executed without trial in what became known as the Red Terror. During this period, the Soviet government created Crimean Autonomous Soviet Socialist Republic (ASSR) and additionally promoted the national identity of the indigenous Crimean Tatars as they had served the Red Army and played an role in their victory. This was swiftly reversed during the Stalinist era that ordered the mass deportation of the Crimean Tatars among other nationalities from the country to labour camps for allegedly collaborating with the German Nazis, whereby during World War Two the Nazi regime successfully captured the region of Sevastopol until 1945, where the Soviet Union reclaimed and transferred it as the Crimean Region of the USSR from the original ASSR and downgrading it to an administrative division or oblast.
By 1954, however, the Soviet Union under the leadership of Nikita Khrushchev issued a decree to transfer Crimea to the then Soviet Ukraine and legalised by the USSR Parliament, claiming that territorial proximity along with a moral gesture to celebrate strong cultural ties purposed the transfer. “Article 77 of the 1978 Ukrainian SSR Constitution placed the Crimea and the two cities of Sevastopol and Kyiv under Soviet Ukrainian Republican jurisdiction.” Notwithstanding any alleged political machinations by Khrushchev at the time that ultimately resulted in the Crimean transfer, the intention was to normalise and promote friendly relations analogous to the principles of international law in accordance with the Charter of the United Nations. The transfer was legally instituted in the then USSR Parliament despite allegations – as seen in the Crimean speech by Vladimir Putin in 2014 – that the circumstance determining the transfer was a personal initiative or mere formality rather than legally pertinent. “Any allegations that the transfer of the Crimean peninsula to the Ukrainian SSR was conducted in breach of the constitutional law of the USSR appear to be baseless after a study of the legal procedures followed in 1954.” Russia has argued that the transfer itself was illegitimate not simply relating to the city of Sevastopol that it claims has since 1948 never been part of the Crimean region, but namely that it defied the USSR constitution and thus the transfer remains null and void. The attempt to determine a violation of legal procedures as applied by the Presidium of the Supreme Council in the Russian SFSR that approved the transfer of Crimea is substantiated by the view that the Presidium– consisting of 27 members and the highest authority at the time – only received 13 votes. “The Supreme Council did approve the transfer by unanimous vote, but it did so without a quorum present,” however the other 14 voters were merely absent and thus no procedural breach occurred. Thus the amendments to Articles 22 and 23 of the Constitution of the USSR whereby the Crimean region was deleted from the former article with further amendments to ensure full jurisdiction of Crimea by the Ukraine remains legal.
The attacks against the legitimacy of the transfer of Crimea to Ukraine appear to be a smokescreen in an attempt to justify the legality of the occupation. This occupation was many years in the making and the internal conflicts within Ukraine established a chain of events that found both Crimean and Russian authorities encourage and eventually hold a referendum fashioned with problems that determined whether Crimean territory would be absorbed by Russia. Prior to the referendum, there were doubts as to the influence of Russia on Ukrainian political affairs, with increased tension following former president Viktor Yanukovych suspending original plans to sign an EU trade agreement. “Ukrainian president Viktor Yanukovych, who was due to formally sign his country’s agreement with the EU, had a last minute change of heart.” In addition, the response to peaceful pro-EU protests held at Independence Square – known as the Euromaiden – in Kiev, whereby riot police attacked protestors leading to mass demonstrations throughout the country only worsened when parliament overstepped its legislative powers by changing the laws of association. The pejorative of the anti-protest laws was to restrict freedoms of association and speech that only increased the tension of protestors, leading to several deaths and street clashes with police and ultimately forcing pro-Russian Prime Minister Mykola Azarov to resign following comments labelling the actions of protestors as ‘Nazi’ behaviour. Regarding the latter, the suspicions of Ukrainian civil society was embellished earlier with developments of a language policy that attempted to change laws making Russian the second official language – the law later abolished – with comments from Azarov claiming Ukrainian is a ‘little Russian language’ that merely sparked controversy particularly to where his loyalty lied.
The subject of self-determination in international law is wrought with complications, primarily because of its incredibly close relationship with politics. Whilst there remains no universally accepted definition of statehood, the International Law Commission did attempt to codify the theory of recognition vis-à-vis statehood, namely: “The political existence of the State is independent of its recognition by other States. Even before it has been recognized, the State has the right to defend its integrity and independence, to provide for its preservation and prosperity, and, consequently, to organize itself as it sees fit, to legislate in regard to its interests, to administer its services and to determine the jurisdiction and competence of its courts of justice.” This broad draft proposal was rejected as it was grounded in ambiguity that it could in the context of international law contain political repercussions. The dichotomy between constitutive and declaratory approaches, namely that of recognition or that of meeting the legal criteria for statehood, only adds to the complication. It is clear that those territories experiencing decolonisation contain challenges particularly related to self-determination, with cultural divides and unstable political systems [it has been noted that democracy is not a static event but a political process that is developed over a period of time] confirming that a salient transition to independence is inhibited. The Declaration on the Granting of Independence to Colonial Countries and Peoples itself proved conscious of the conditions that the process of civic liberation could threaten peace; “[a] ware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitute a serious threat to world peace.”
I find it useful ending this post with:
“Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”
 “Convinced that the continued existence of colonialism prevents the development of international economic cooperation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace.” UNGA Res 1541/ 1960 (15 Dec 1960)
 See UN Charter Art 2, and Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 225, 25 UN GAOR (1883rd mtg)
 Franz Cede, Lilly Sucharipa-Behrmann, The United Nations: Law and Practice, Martinus Nijhoff Publishers, (2001) 5
 Donald Earl Childress, The Role of Ethics in International Law, Cambridge University Press (2011) 57
 United States. Congress. House. Committee on International Relations. Subcommittee on International Operations and Human Rights, The betrayal of Srebrenica: why did the massacre happen? Will it happen again? Hearing before the Subcommittee on International Operations and Human Rights of the Committee on International Relations, House of Representatives, One Hundred Fifth Congress, second session, Volume 4 (1998)
 Marie-Janine Calic, Dietmar Neutatz, Julia Obertreis, The Crisis of Socialist Modernity: The Soviet Union and Yugoslavia in the 1970s, Vandenhoeck & Ruprecht (2011) 135
 Article 1
 Mario Silva, State Legitimacy and Failure in International Law, Martinus Nijhoff Publishers, (2014) 15
 “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.”
 Helsinki Final Act (1975), Part 1 (a); also see Principle III (Inviolability of Frontiers).
 Christian Marxsen, “The Crimea Crisis: An International Law Perspective”, ZaöRV 74 (2014), 367-391
 Linda J Pike, Encyclopedia of Disputes [Installment 10], Elsevier, (2014) 470
 James R Crawford, The Creation of States in International Law (2nd Edition)
 John Quigley. The Statehood of Palestine: International Law in the Middle East Conflict. Cambridge University Press (2010) 164.
 What became known as the Badinter Arbitration Committee, in 1991.
 Council of Ministers, EU, Joint Declaration on Yugoslavia, 27 August 1991
 Opinion No. 1 of the Arbitration Commission of the Peace Conference on Yugoslavia (1992) 31 ILM 1494
 Final Act of the Helsinki Conference on Security and Co-operation in Europe: Questions Relating to Security in Europe — Declaration on Principles Guiding Relations between Participating States, 1 August 1975, 14 ILM 1292, principle 4 (‘Final Act of Helsinki’).
 Jure Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice, Bloomsbury Publishing (2013)
 Peter Radan, “Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission”  MelbULawRw 3; (2000) 24(1) Melbourne University Law Review 50
 Richard F. Iglar, The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia’s and Croatia’s Right to Secede, 15 B.C. Int’l & Comp. L. Rev. 213 (1992)
 Opinion No 11 of the Arbitration Commission of the Peace Conference on Yugoslavia, 16 July 1993, 32 ILM 1587, 1588 (‘Opinion No 11’).
 Peter Radan, supra
 United Nations Charter, supra
 Nikolaos Ioannidis, “Constitutional Prohibition of Secession under the Prism of International Law: The Cases of Kosovo, Crimea, and Cyprus”, Edinburgh Student Law Review, Vol. 2, Issue 4 (2015)
 J Crawford, “State practice and international law in relation to secession’ (1998) 69(1) British Yearbook of International Law 85
 Kristina Daugirdas and Julian Davis Mortenson, Contemporary Practice of the United States Relating to International Law, The American Journal of International Law, Vol. 108, No. 4 (October 2014), pp.783-842
 Nikolaos A. Ioannidis*see Saar and Scotland.
 Article two constitution, Article 134
 Venice Commission’s Code of Good Practice
 Janne Haaland Matlary, Tormod Heier, Ukraine and Beyond: Russia’s Strategic Security Challenge to Europe, Springer (2016) 226
 Christian Marxsen, The Crimea Crisis: An International Law Perspective. ZaöRV 74 (2014), 367-391 Also see, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ Reports, 425 et seq.
 GA/11493 100-11-58, A/68/L.39, Territorial Integrity of Ukraine
 By Eduard Martynovich Dune, Diane Koenker, Stephen Anthony Smith, Notes of a Red Guard, University of Illinois Press (1993) 262
 M. Landa, Maximilian Voloshin’s Poetic Legacy and the Post-Soviet Russian Identity, Springer, (2015)
 R. J. Rummel, Lethal Politics: Soviet Genocides and Mass Murders Since 1917, Transaction Publishers (1996) 38
 Brian Glyn Williams, The Crimean Tatars: The Diaspora Experience and the Forging of a Nation, BRILL, (2001)
 Agnia Grigas, Beyond Crimea: The New Russian Empire, Yale University Press, (2016) 62
 Paul Robert Magocsi, History of Ukraine – 2nd, Revised Edition: The Land and Its Peoples, University of Toronto Press, (2010)
 Matteo Nicolini, Francesco Palermo, Enrico Milano, Law, Territory and Conflict Resolution: Law as a Problem and Law as a Solution, BRILL (2016) 160
 Op. Cit., Ferran Requejo, Nagel Klaus-Jürgen
 Roman Solchanyk, Ukraine and Russia: The Post-Soviet Transition, Rowman & Littlefield (2001) 165
 Ferran Requejo, Nagel Klaus-Jürgen, Federalism Beyond Federations: Asymmetry and Processes of Resymmetrisation in Europe, Routledge (2016) 179
 See GA Res 2625
 Address by President of the Russian Federation, Vladimir Putin addressed State Duma deputies, Federation Council members, heads of Russian regions and civil society representatives in the Kremlin [March 18, 2014], The Kremlin, Moscow.
 Oleksandr Zadorozhnii, Russian doctrine of international law after the annexation of Crimea: Monograph, Yuri Marchenko, 84
 Until recently, Article 65 of the Constitution of Russian Federation had confirmed the jurisdiction of Sevastopol to the Ukraine and therefore the Codes in Ukrainian law were applied to Sevastopol. Also see Article 133 of the Constitution of Ukraine .
 Op. Cit., Matteo Nicolini, Francesco Palermo, Enrico Milano, 146
 Marin Katusa, The Colder War: How the Global Energy Trade Slipped from America’s Grasp, John Wiley & Sons (2014) 78
 Oleksandr Zadorozhnii, Russian doctrine of international law after the annexation of Crimea: Monograph, Yuri Marchenko, 84
 Matteo Nicolini, Francesco Palermo, Enrico Milano, Law, Territory and Conflict Resolution: Law as a Problem and Law as a Solution, BRILL (2016) 151
 Dick Leonard, Robert Taylor, The Routledge Guide to the European Union
 Gideon Rose, Crisis in Ukraine, Foreign Affairs (2014) 52
 Elizabeth Wood, William Pomeranz, E. Merry, Maxim Trudolyubov, Roots of Russia’s War in Ukraine, Columbia University Press (2015) 18
 J. L. Black, Michael Johns, The Return of the Cold War: Ukraine, The West and Russia, Routledge, (2016) 240
 Op. Cit., Crisis in Ukraine
 Michael Moser, Language Policy and Discourse on Languages in Ukraine Under President Viktor Yanukovych, Columbia University Press, (2013) 378
 ILC, Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States, (Memorandum submitted by the Secretary-General) A/CN.4/2, 15 December 1948, 55–6.
 See Gero Erdmann, Marianne Kneuer, Regression of Democracy?, Springer Science & Business Media, (2013) 37
 GA Resolution 1514
 Declaration on the Granting of Independence to Colonial Countries and Peoples Adopted by General Assembly resolution 1514 (XV) of 14 December 1960
As of March 2017, key figures from the United Nations Office for the Coordination of Humanitarian Affairs estimates that more than 5 million refugees have fled Syria, with 6.3 million internally displaced and a total of over 13 million in need of urgent humanitarian assistance. Turkey has accepted a large number of the refugees, hosting over 2.8 million refugees, comparably with Europe where less than 900,000 applicants since 2011 have applied for asylum, data retrieved from 37 European countries that provide UNHCR with monthly figures. Additionally, countries such as Lebanon has taken in over 1 million and over 650,000 have fled to Jordan, two countries that have not signed the United Nations Convention Relating to the Status of Refugees adopted in 1951 and further still, the 1967 Protocol Relating to the Status of Refugees that extended the former boundaries that were initially limited to Europe so as to enable universal coverage. Article 1 of the 1951 Convention nevertheless transformed the international status and human rights of refugees by providing a single definition:
“As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Like many instruments that developed at the time, the convention strengthened principles particularly relating to the fundamental rights of refugees such as non-discrimination and particularly non-refoulement, the latter where asylum seekers are forced to return back to a country where they there may be a strong likelihood of experiencing persecution in a number of various ways. It also reinforced the universality of international human rights law without exception to State provisions as well as prejudice toward race, religion or country of origin.
Nevertheless, there have been a number of concerns relating to the effectiveness of the Refugee Convention and its Protocol in managing the influx of refugees and demonstrated by the huge number of asylum seekers displaced from the Syrian War. Some of these failures have enabled discussions on reforming the instruments to deal with the crises of asylum seekers to suit the current economic and social conditions and to satisfactorily manage a system fraught with problems. One of these includes the convention’ failure to ameliorate new global changes to social, demographic and national environments that render it ineffective to adequately deal with the logistical, financial and humanitarian aspects of the influx of refugees. While taking a rights-based approach, both the refugee convention and the protocol fail to address the complexities of man-made catastrophes and the unique regional differences that causally play a role in these catastrophes. As such, it has been argued that a holistic approach is required to enable better considerations of regional and cultural attitudes that enhance a decisive clarity of the causes in order to measure, prevent and manage man-made disasters. It is clear, for instance, the dynamics of ISIS in the Middle East, the ramifications of the gulf-war, oil and water politics and the post-colonial economic hardships that have enabled destabilising political regimes demonstrate the necessity for a holistic approach specific to the Middle East.
In order to compare the possible effectiveness of a holistic approach to the concerns raised by the recent influx of Syrian refugees, development of a number of additional instruments that attempt to define the legal confusion on the status of a refugee in other regions have been adopted. In 1999, the Tampere Council – a special European Council meeting held in Tampere – attempted to improve changes to immigration as well as consolidate foreign and security policies through the opportunities that the Treaty of Amsterdam afforded. The Treaty of Amsterdam altered the former Treaty of Maastricht [where the development of supranational institutions such as the European Court of Justice was initiated] and includes a number of protocols and declarations that empowered the European Union to develop legislation that would effectively coordinate policies and procedures more effectively, along with strategies that would strengthen intergovernmental cooperation subject to protecting its own interests. Since then, there has been an ongoing development to improve legislative frameworks that recognise, for instance, the importance of the financial output during an influx of those seeking asylum and thus established the European Refugee Fund [ERF] that administers financial support to member countries to manage and resettle refugees and displaced persons.
Syrian children who have fled into Jordan and Lebanon are being illegally exploited and due to their status are forced into labour rather than schools; despite countries like Jordan being a signatory to the International Convention on the Rights of the Child.
Representatives that drafted the 1951 Convention also desired signatories to exceed the demands set out in the convention, thus it was not long after that the European Union developed The Qualification Directive. This followed the Temporary Protection Directive that was developed due to the poor management vis-à-vis violence in the former Yugoslavia that resulted in large numbers of displaced persons in the region and thus, under exceptional circumstances such as war, became a process to provide temporary protection. It sought to exemplify minimum standards for refugees, stateless persons or third-country nationals that required international protection and develop a common policy on asylum by advancing the Common European Asylum System Agency (EASO), as well as facilitate better cooperation between member states by improving protection and “affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.” The Common European Asylum System guaranteed standards of protection where asylum seekers are treated fairly and with dignity. The Qualification Directive established a criterion that would qualify the minimum standards that confirms the status of a refugee and thus regulating the process that determines the granting of international protection. An act of persecution must be sufficiently serious that would violate human rights including act of physical, sexual and psychological or any disproportionate legal prosecution that would result in discriminatory prosecution.
And yet, with what appears to be a small number of refugees from Syria seeking asylum in Europe comparably to other States, none of these instruments have been put to use, on the contrary, it appears that there may either be a hesitation as the limited timeframe for providing asylum for a maximum of up to two years to Syrian refugees is not realistic in relation to the ongoing length of the war, or there is a hidden exclusivity to these instruments limited to the possibility of use in the event of a European catastrophe. UN High Commissioner for Refugees determined that the needs of the refugees require hefty financial support and pledged nine billion at the conference in London. While financial support would enable countries experiencing an influx of refugees to manage the economic strain, it is clear that the ERF may still struggle to manage, whereby OCHA estimates that a total of $3.4billion dollars is required to fund a humanitarian response plan for the life-saving assistance to 13 million Syrians in need of urgent humanitarian support, funding that has only reached 11.3% of this required target.
Other failures also include no guarantee that unaccompanied children will have access to legal representation, along with the absence of provisions that deal with Internally Displaced Persons (IDP), knowing that within in Syria there are 6.3million IDP’s that require urgent assistance. That is, the Convention does not “apply to those refugees who have a status equivalent to nationals in their country of asylum.” It has been argued that the Convention should be reformulated to address these issues however the potential problem to removing and establishing a new convention is that it would still fail to address continuous regional changes that may impact on the development of even more disputes. For instance, the United Nations Committee on the Rights of the Child stated that States “shall not return to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child,” and while they clarified the responsibilities of States to ensure how the assessment of this risk should be conducted, this risk is nevertheless open to interpretation. For instance, Suresh v Canada questioned procedural fairness whereby even if a refugee is at risk being tortured, they can be deported to their homeland if they conversely a serious risk to Canadian security. Procedural fairness without the inclusion of assessing unaccompanied minors or other vulnerable groups including women who are pregnant or survivors of serious trauma that have developed serious mental health issues may lead to prejudicial outcomes.
Other global and regional instruments enacted to ensure adequate support for asylum seekers are effectively taking place can act as a catalyst to developing changes to the Middle East. In Africa, for instance, where a number of political and social instabilities have resulted in an influx of refugees, established the Organisation of African Unity and the Convention Governing the Specific Aspects of Refugee Problems in Africa that attempted to ameliorate a stronger understanding of the legal or political aspects to refugee protection but specific to Africa. Together with the Cartagena Declaration on Refugees in Latin-American, the protection of refugees within the instruments were extended to include a more demographically and culturally appropriate – thus holistic – approach to regional affairs that the Convention and its Protocol were unable to adequately compliment, thus enabling better responses to mass displacement. For instance, while the convention and the protocol are rights-based instruments, OAU Convention seeks to address humanitarian responses to mass influx of refugees by enabling its member States to legislate domestically in order to address and protect all those seeking asylum. It additionally clarified the differences between groups of refugees as a result of a disaster with individual refugees seeking protection.
The United Nations estimates Lebanon is housing 1.14 million Syrian refugees and not being party to the Refugee Convention and Protocol, Lebanese domestic laws that purport any person without legal documentation within its boundaries are considered illegal have left Syrian refugees without legal status. In fact, while Lebanon is constitutionally bound by customary law and other human rights obligations being a signatory to a number of human rights conventions, not becoming party to the 1951 Convention or its following Protocol has left only a Memorandum of Understanding (MOU) with the UNHCR as the only instrument to assist refugees coming from Syria. UNHCR has noted that even with the MOU protection remains notoriously difficult. Domestic legislation in Lebanon governing refugees is extremely limited whereby Law of 1962 regulating the Entry and Stay of Foreigners in Lebanon and their Exit from the Country fails to provide legal protection and other important human rights services for Syrian refugees. Unlike OAU Convention that treats individual and group assessments based on contingent situations such as fleeing war or other man made violence, the provisions of the 1962 law treat individual cases. “Any foreigners who is subject of pursuit or has been convicted for a political crime by a non-Lebanese authority or whose life or freedom is threatened because of political considerations may ask for political asylum.” As such, Syrian refugees in Lebanon are without any legal protection and according to Article 32 of the 1962 Law, can be fined and even imprisoned as illegal entrants. While the MOU signed between Lebanon and UNCHR enables the latter to ensure temporary residence permits are provided as a solution – albeit temporary – to the problem with Syrian refugees, the limited time (of a maximum of nine months) may not be estimative of the realistic timeframes necessary to support them pending the continued violence in Syria. Clarification of renewing residency permits remains ambiguous and any rights including seeking employment are extremely limited, if not non-existent and leaving refugees in an incredibly vulnerable position. This was further delayed when the Lebanese government requested that UNHCR suspend registrations of Syrian refugees in 2015.
The image below exposes the horror of what happened to almost 75 Syrian women who fled the war and were tortured and forced into sexual slavery within ‘Chez Maurice’ in the Lebanese town of Jounieh. Notwithstanding the horrible men involved in this disgusting trafficking incident, it also shows the failure of the government to protect asylum seekers and why it is so important.
While Lebanon has recently enacted changes to domestic legislation amid continued discussions relating to the status of refugees, in particular waiving fees for Syrian refugees fleeing the war [a charge of US$200 that was introduced in 2015], this unfortunately excludes a large number who were unable to register with UNHCR, almost half a million. The impact of these failures in Lebanon can have devastating effects to the rights and protection of Syrian refugees since by having no legal status and being at risk of imprisonment, movements become restricted and in order to survive many refugees are becoming victims to exploitation. According to the final report on Syrian refugees in Lebanon by Freedom Fund, incidence of slavery and human trafficking is growing including child labour and marriage, sexual exploitation and forced labour that clearly exemplifies why ratification of the 1951 Convention and its 1967 Protocol is necessary. In addition, children from families without residency permits in Lebanon are unable to obtain a formal education as well as access to healthcare for families including pregnant women whose children are at risk of statelessness. It is also clear that existing regulatory frameworks are modified along with domestic legislation protecting Syrian refugees from harm including exploitation and trafficking is afforded. Although Lebanon is constitutionally bound by the customary law principle of non-refoulement, recent talks between Lebanon and the Syrian opposition to return those seeking asylum – whereby Hezbollah stated that they have been mediating the possible return of refugees from the Arsal border to the Qalamoun region in Syria – that begs the question of whether non- refoulement procedures are adequately adhered.
According to Amnesty International, while Jordan is hosting over 650,000 refugees, in mid-2016 it closed its borders that stranded over 75,000 Syrian refugees between the Syrian-Jordanian borders in the horrific al-Rukban and Hadalat refugee camps within desert conditions. This is not a problem with Jordan alone, whereby Human Rights Watch has also reported shootings against Syrian refugees attempting to enter the country at Turkish borders. Whilst citing security concerns amid threats from ISIS, the strain that Jordan has experienced economically due to the lack of international aid has pressured the government to regulate occupation that only Jordanian citizens are allowed to work in, forcing asylum seekers toward illegal working conditions. Jordan also signed an MOU with UNHCR that enabled recognition of refugee status for a duration of up to six to twelve months but consideration of the massive influx of Syrian refugees was not adequately deliberated as domestic law similarly observe a case-by-case basis. In addition to this, each of the individuals fleeing are required to have documentation, something that clearly may not always be possible considering the situation. Constitutionally, Jordan must adhere to international customary law on non-refoulment, where extradition of political refugees is prohibited.
With the surmounting difficulties along the borders of Lebanon and Jordan, the clarity and necessity of including internally displaced persons within the international framework becomes clear as millions of Syrian refugees are unable to flee. The United Nations– along with reaffirming – has called upon States such as Jordan and Lebanon to become party to the Convention. Regarding the problem of stranded refugees along the Jordanian-Syrian border, comparatively the OAU Convention explicitly reaffirms that in the even where a member state may find it difficult to continue granting asylum it will appeal to other Member States of the OAU to assist in supporting them. As such, the development of a similar regional instrument amongst Middle Eastern States that touch on relevant concerns specific to the demographics and culture would be an important step forward to strengthen a cohesive process for Syrian refugees to adequately manage man-made disasters as well as improve processes for countries such as Jordan and Lebanon to better protect asylum seekers. It will also ensure that compliance to the States’ ratification of the relevant instruments along with a complementarity between the regional and international refugee protection frameworks are adequately observed. Other improvements and regulations would be the consistent pressure to ensure Lebanon and Jordan ratify the 1951 Status of Refugees Convention and its 1967 Protocol, as well as honing down on better domestic legislation that will ensure legal protections are provided to refugees and asylum seekers. With stronger mutual cooperation in the Middle East, the distribution of services to victims of mad-made disasters specific to regional affairs may protect women and children from becoming victims of exploitation.