Migs and Monks in Crimea: Russia Flexes Cultural and Military Muscles Revealing Dire Need for a Stronger International Norm of Uti Possidetis

• Author: Major Justin A. Evison
• Pages: 90-128

90 MILITARY LAW REVIEW [Vol. 220

MIGS AND MONKS IN CRIMEA: RUSSIA FLEXES

CULTURAL AND MILITARY MUSCLES, REVEALING DIRE

NEED FOR BALANCE OF UTI POSSIDETIS AND

INTERNATIONALLY RECOGNIZED SELF-

DETERMINATION

MAJOR JUSTIN A. EVISON

Tens of millions of our fellow citizens

and countrymen found themselves

beyond the fringes of Russian territory.

—President Vladimir Putin, April 25, 20051

Putin, surely, is the main guarantor of

the security of the Russian world,” the

president’s spokesman, Dmitry Peskov,

said on state television last month. “And

Putin has rather unambiguously stated

that.

—Dmitry Peskov, March 7, 20142

 Judge Advocate, U.S. Army. Presently assigned as Chief of Training Policy, Office of

the Judge Advocate General, Pentagon, Washington, D.C. LL.M, 2009–2010, The Judge

Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2001, The John

Marshal Law School, Chicago, Illinois; B.A., 1997, Hillsdale College, Hillsdale,

Michigan. Previous assignments include Brigade Judge Advocate, 170th Infantry

Brigade, Baumholder, Germany, and Mazar-i-Sharif, Afghanistan; International &

Operational Law, U.S. Army Europe & Seventh Army, Heidelberg, Germany, 2007–

2009; Senior Trial Counsel, Eighth Army, Camp Humphries, Korea, 2006–2007; Defense

Counsel, Mosul, Iraq, 2006; Defense Counsel, Darmstadt, Germany, 2005–2006; Trial

Counsel, V Corps, Darmstadt, Germany, 2003–5005; Operational Law, Kuwait &

Baghdad, Iraq, 2003; Legal Assistance and Administrative Law, V Corps, Darmstadt,

Germany 2002–2003. Member of the Bar of Illinois.

1 Ott Ummelas, Putin's 21-Year Quest to Be Russian Guardian Began in Estonia,

BLOOMBERG NEWS (Apr. 14, 2014), http://www.bloomberg.com/news/2014-04-13/putin-

21-year-quest-to-be-guardian-of-russians-began-in-estonia.html. See also Valery

Sharifulin, Peskov: Putin Is Guarantor of Russian World’s Security, ITAR-TASS NEWS

AGENCY (Mar. 7, 2014), http://en.itar-tass.com/russia/722667.

2 Id. In 2005, after winning a second presidential term, Putin told the nation that the

Soviet collapse in 1991 was a “genuine tragedy” for the Russian people. Id.

2014] BALANCING UTI POSSIDETIS 91

I. Introduction

Flights to Sochi’s beachside airport arrive from all points north in

Russia as August brings a flood of sun-starved tourists to the warm

beaches of the Black Sea. Approaching planes fly south over the resort

city and out across the water before turning in a low “U” to land just

meters beyond the sun-glinting waves. Near the beach, onion domes rise

up against the sky, their golden surfaces glistening in the sun.

Worshipers file into a cathedral for the Russian Orthodox liturgy on

Sunday morning, pressing close in the crowded sanctuary, lighting

candles, and venerating icons in the shadow of sweeping flower-adorned

walls. The rhythmic hum of a Znamenny Chant evokes Byzantine

visions of the Middle Ages as the wafting incense completes the celestial

transcendence. An intrepid American, visiting the church, steps outside

to break the reverie and notices a constant stream of flights taking off

from the airport into the clear, blue sky. The lumbering passenger jets

hang over the swimming throngs on the beach as they gain altitude. But,

the quieter, higher-pitched whine of the Mikoyan-i-Gurevich or “MiG”

fighters really grab his attention. Two, four, six, eight . . . it is easy to

lose count. The fighters bank right, engage afterburners and head with

belligerent resolve toward the closest landmass to the west: Ukraine.

This fictional account of conflict between Ukraine and Russia

demonstrates current Russian cultural trends and ambitions. Russia

violated uti possidetis3 by sponsoring Crimea’s secession vote from

Ukraine and subsequently annexing Crimea in March of 2014.4 Russia’s

action demonstrated a warped view of self-determination5 and a

3 Uti possidetis is “the doctrine that colonial administrative boundaries will become

international boundaries when a political subdivision or colony achieves independence.”

BLACK’S LAW DICTIONARY (8th ed. 2004). See also Steven R. Ratner, Drawing a Better

Line: Uti Possidetis and the Border of New States 90 AM. J. INT’L L. 590, 590 (1996).

“[U]ti possidetis provides that states emerging from decolonization shall presumptively

inherit the colonial administrative borders that they held at the time of independence.”

Id.

4 David M. Herszenhorn, Crimea Votes to Secede from Ukraine as Russian Troops Keep

Watch, N.Y. TIMES (Mar. 16, 2014), http://www.nytimes.com/2014/03/17/world/

europe/crimea-ukraine-secession-vote-referendum.html?_r=1. See also Matt Smith &

Alla Eshchenko, Ukraine Cries ‘Robbery’ as Russia Annexes Crimea, CNN (Mar. 18,

2014), http://www.cnn.com/2014/03/18/world/europe/ukraine-crisis/index.html.

5 “Self-determination implies the right of an identity group to self-governance, meaning

sovereignty over themselves-limited or complete.” Michael J. Kelly, Political

Downsizing: The Re-emergence of Self-determination, and the Movement Toward

Smaller, Ethnically Homogenous States, 47 DRAKE L. REV. 209, 220 (1999).

92 MILITARY LAW REVIEW [Vol. 220

dangerous lack of respect for uti possidetis. Crimea’s undeniable

historical and cultural connection to Russia is not a unique circumstance;

however, as dozens of groups and regions across the globe agitate for

their own self-determination or sovereignty and provide at least as

compelling a case to justify it. By one count, there have been over 78

“self-determination conflicts since World War II.”6 Had the world

consistently applied uti possidetis over the past 20 years, Russia may

have been deterred from sponsoring Crimea’s secession and

subsequently annexing it.

This article examines the important concept of uti possidetis and how

it can be strengthened through consistent state practice and harmonized

with the preemptory norm of self-determination. Self-determination

movements, tempered with uti possidetis, can develop peacefully,

focusing on four essential elements: international recognition,

compliance with domestic law, fair elections, and no outside

interference. History shows how the implementation of uti possidetis

had some success in preserving peace since World War II. Selective

application of uti possidetis in Kosovo weakened the principle and

created a perception in Russia that it could seize Crimea in March 2014.

A stronger uti possidetis balanced with self-determination requires

Crimea remain part of Ukraine, but still allows the Crimean population to

work towards self-determination—without Russian interference.

Increased, consistent state practice of uti possidetis balanced with an

internationally recognized process of self-determination featuring the

four above-mentioned, essential elements may have deterred Russia from

sponsoring the secession of Crimea and annexing it; in the future it may

prevent violence, economic hardship, and outright war in Eastern Europe

and beyond.

II. Balancing Uti Possidetis and Self-Determination

Uti possidetis is a legal principle holding that the frontiers of newly

independent states remain fixed following independence.7 Uti possidetis

emerged in medieval times as a theory governing land ownership.8 It

6 Marc Weller, Settling Self-Determination Conflicts: Recent Developments, 20 EUR. J.

INT’L L. 111, 114 (2009).

7 Ratner, supra note 3, 590–91.

8 Enver Hasani, International Law under Fire Uti Possidetis Juris: From Rome to

Kosovo, 27 FLETCHER FORUM OF WORLD AFF. 85, 85 (2003).