CYIL 2015

145

THE CREATION OF NEW STATES AND

DE FACTO

REGIMES, AND THE CASE OF CRIMEA

Problematic is also the presence of unmarked soldiers during the referendum.

Russian President Putin always denied the presence or activity of troops other than

those belonging to the Black Sea fleet and denied that the unmarked soldiers were

Russian. In this context there is the question of whether unilateral secession of part of

a territory of another state is permissible. The Advisory Opinion of the International

Court of Justice of 2010 in respect of Kosovo can be quoted in this respect. According

to the ICJ “in no case, however, does the practice of States as a whole suggest that the

act of promulgating the declaration was regarded as contrary to international law.”

It also states in relation to Kosovo that state practice points clearly to the conclusion

that international law contained no prohibition of declarations of independence. The

Court concludes that the declaration of independence of 17 February 2008 did not

violate general international law.

The Court, however, considers illegal those cases

where the illegality attached to the declarations of independence stemmed not from

the unilateral character of these declarations as such, but from the fact that they were,

or would have been, connected with the unlawful use of force or other egregious

violations of norms of general international law, in particular those of a peremptory

character

(jus cogens)

. Such acts were condemned by the resolutions of the UN Security

Council. Concerning the case of Kosovo the Court also stated that “the authors

of the declaration of independence of 17 February 2008 did not act as one of the

Provisional Institutions of Self-Government within the Constitutional Framework,

but rather as persons who acted together in their capacity as representatives of the

people of Kosovo outside the framework of the interim administration.”

The Court

wanted to express that the authors of the declaration of independence did not act in

violation of Security Council Resolution 1244/1999.

In the case of Crimea the role of Russia in relation to the referendum, whether

the unmarked forces act tactically on behalf and by orders of Russia, is questionable.

It can be mentioned that the President of Russia praised Russian troops during the

meeting with newly promoted officers on 28 March 2014, when he said that the

events in Crimea demonstrated “qualitatively new possibilities” of Russian armed

forces and the high morale of the troops. Professionalism of Russian soldiers,

according to Putin, make it possible to “avoid provocation and not allow bloodshed”,

as well as to ensure conditions for “free organization of a referendum” about the

incorporation of Crimea into Russia. According to some commentators this wording

of the Russia President can be considered cautious, and it cannot be taken as an open

confirmation of the deployment of Russian soldiers other than those of the Fleet.

In any case the suspicion about Russian influence is considerable. The speeding up

See: ŠTURMA, P. a kol.

Casebook. Výběr případů z mezinárodního práva veřejného

. 2. Doplněné vydání.

Praha : UK v Praze Právnická fakulta, 2010, s.151 (odst. 79).

Ibid.

, s 152 (odst. 81).

Ibid.

s. 153 (odst. 109).

Ibid