Miriam: PH should be neutral on Crimea

MANILA, Philippines – Senator Miriam Defensor Santiago urged the Philippines to be neutral on the issue of recognizing Crimea as Russia and the West clash on its annexation.

The chairperson of the Senate foreign relations committee and judge-elect of the International Criminal Court (ICC) weighed in on the issue described as the biggest crisis in East-West relations since the Cold War.

“In the case of the Philippines, the better part of prudence dictates that we must leave for the moment the question of whether we shall recognize Crimea. If necessary, we can have a working relationship with Crimea if it becomes absolutely necessary but we do not have to extend official recognition to it,” Santiago told reporters after her speech at the International Youth Conference in Taguig City on Friday, March 21.

“What we should do is we should just be neutral on the question of Crimea,” she added. 

Santiago explained that her position stems from the absence of customary international law about secession.

“International law is neutral with respect to secession.  International law neither prohibits nor promotes secession. The major consideration is mainly political, and this decides the issue of whether a state will recognize the new independent state” said Santiago, an international law expert. 

Besides politics, Santiago said “non-legal factors” like diplomatic abilities or the ability to raise international support, the ability to influence the media, and military power will shape the recognition of a new independent state.

Santiago’s statement comes after Crimean leaders signed a treaty with Russia to absorb the peninsula, an autonomous republic in southern Ukraine, into Russia. The move follows a contentious referendum on Sunday where Crimeans overwhelmingly voted to join Russia after Ukraine’s pro-Russian President Viktor Yanukovych was replaced by Western-leaning leaders.

Ukraine and the West said the vote violated international law while Russian President Vladimir Putin maintained that Crimeans have the right to self-determination. US President Barack Obama and European leaders announced sanctions on political and military figures involved in Russia’s intervention in Crimea.

Yet Santiago argued that the “Crimea event” does not yet constitute customary international law.

She said the 3 main characteristics of international law are repetition, practice, and opinio juris or the principle that for a conduct or a practice to become a customary international law, “it must be shown that nations believe that international law – rather than moral obligation – mandates the conduct or practice.”

“At least some states will recognize Crimea as a state within the orbit of Russia, but recognition by others will not amount to recognition of a general right to independence by Crimea.  On the contrary, other states will simply acknowledge the fact that a new Crimean state has come into existence, but without regard on how that state was created,” Santiago said.

The senator also joked about the US and European response to the crisis. “Ito na naman ang Europe, US, gusto nilang makialam because they want to assume the role of policeman of the world. Maniwala ka!”

(Here comes the Europe and US, wanting to intervene because they want to assume the role of policeman of the world. Would you believe that?)

Parallelisms with Kosovo

In discussing the crisis, Santiago drew parallelisms between Crimea and Kosovo, which unilaterally declared independence from Serbia in 2008 after years of strained relations between its Serb and Albanian inhabitants.

The BBC reports the US and major European Union countries recognized Kosovo but Serbia, backed by its powerful ally Russia, refuses to do so along with most ethnic Serbs inside Kosovo.

Santiago noted that many states promoted the separation because they claim Serbia resorted to ethnic cleansing in Kosovo.

“The UN Security Council did not authorize military action against Kosovo.  Even so, NATO (North Atlantic Treaty Organization) and its member states intervened in Kosovo. Serbia surrendered, and the Security Council authorized an international civil and military presence in Kosovo. The Security Council ignored the legality of the prior use of force, as well as the final status of Kosovo,” she said.  

“At present, the status of Kosovo remains controversial because while some states have extended recognition, others have refused to recognize it.  The Philippines has not extended recognition to Kosovo.”

Santiago said that like Kosovo, the Crimea event is not “a simple case of finding a legal provision in a law book and applying it to the case at hand.”

“Instead, the Crimea event shows all of us that the structure of the international order is always undergoing change. For international law is not found in laws passed by an international parliament.  International law develops from the practice of states, supranational organizations, international courts, civil society, minorities, and transnational corporations.”

Santiago though said that there was a difference between Kosovo and Crimea. She said “people in Kosovo were being killed, tortured and there was ethnic cleansing.” 

“Remember that when Kosovo invoked the right to secession, the world had witnessed serious human rights violations in that area.  Many states are unwilling to grant recognition to Kosovo, but they conduct everyday working relationships with Kosovo. This might differentiate Kosovo from Crimea.”

Here is the full text of Santiago’s speech on Crimea delivered at the AIESEC International Youth Conference in Taguig:

The Crimea Event

Since you are potential leaders, and since I am a student of international law, let us take this opportunity to discuss briefly the Crimea event.  Crimea used to be part of Ukraine, a country which is geographically adjacent to Russia, and where the local population speaks not the Ukraine language but Russian.  In a recent referendum, where 83% of the Crimeans turned out, 97% of the Crimeans reportedly voted to leave Ukraine and to join Russia.  The government of Ukraine protests the referendum as violative of international law.

At present, there is no authoritative definition of secession.  In the past, secession was defined as the unilateral withdrawal from a state of a constituent part, with its territory and population.  But today, the definition of secession now implies that secession results in separation, regardless of whether or not the separation happens with the consent of the existing state.  Because of this development, at present there is no authoritative definition of secession.

Most often in media, the Crimea event is discussed in the light of the previous Kosovo event.  Kosovo separated, despite the opposition of the state of Serbia.  Thereafter, many states in the world promoted the separation because they claim that Serbia had resorted to ethnic cleansing in Kosovo.

The UN Security Council did not authorize military action against Kosovo.  Even so, NATO (North Atlantic Treaty Organization) and its member states intervened in Kosovo.  Serbia surrendered, and the Security Council authorized an international civil and military presence in Kosovo.  The Security Council ignored the legality of the prior use of force, as well as the final status of Kosovo. At present, the status of Kosovo remains controversial because while some states have extended recognition, others have refused to recognize it.  The Philippines has not extended recognition to Kosovo.

The Kosovo event serves to show that, in the words of the writers Daniel Thurer and Thomas Burri: “A non-principled, pragmatic approach is preferred in the domain of secession. . . . The approach means that it is not non-compliance with legal standards that is decisive for the success or failure of an attempt at secession, but rather non-legal factors, such as diplomatic abilities, or the ability to raise international support, or influence the media.  Quite plainly, military power is often crucial. . . .”

In brief, international law is neutral with respect to secession.  International law neither prohibits nor promotes secession.  The major consideration is mainly political, and this decides the issue of whether a state will recognize the new independent state.  The main service of the Kosovo event is that it motivates other oppressed populations to claim statehood. 

As you can see, like Kosovo, the Crimea event is not a simple case of finding a legal provision in a law book and applying it to the case at hand.  Instead, the Crimea event shows all of us that the structure of the international order is always undergoing change.  For international law is not found in laws passed by an international parliament.  International law develops from the practice of states, supranational organizations, international courts, civil society, minorities, and transnational corporation.

In some final analysis in the future, the independence of Crimea will depend upon the acceptance of the international community.  It remains to be seen whether the Crimea event will in time give rise to a right to secede from a state.

Today, Crimea base their claim on the right to self-determination, more particularly on the principle of internal self-determination.  But if so, we have to wait for international practice to develop; meanwhile, the Crimea event does not yet constitute customary international law.

The three main characteristics of customary international law are: repetition; practice; and opinio juris.  The principle is known in Latin as: “opinio juris sive necessitasis.”  This is the principle that for conduct or a practice to become a rule of customary international law, it must be shown that nations believe that international law – rather than moral obligation – mandates the conduct or practice.

At this time, although many states have recognized Kosovo, I do not think that we have complied with the requirement of opinio juris.  That will be the case with Crimea. At least some states will recognize Crimea as a state within the orbit of Russia, but recognition by others will not amount to recognition of a general right to independence by Crimea.  On the contrary, other states will simply acknowledge the fact that a new Crimean state has come into existence, but without regard on how that state was created.

Finally, remember that when Kosovo invoked the right to secession, the world had witnessed serious human rights violations in that area.  Many states are unwilling to grant recognition to Kosovo, but they conduct everyday working relationships with Kosovo.  This might differentiate Kosovo from Crimea. 

The modern world has been characterized by what is called “ethno-nationalism.” This is the belief that an ethnically pure group is supposed to be the constituent entity or political order.  As a humble student in international law, I am profoundly opposed to the concept of ethno-nationalism, because it violates the basic principles of human dignity and human respect.  In my humble view, ethno-nationalism is incompatible with the principle of self-determination. – Rappler.com