Kennedy Graham

Crimea: judicial settlement v. political contestation – no contest

by Kennedy Graham

The Crimea crisis continues to unfold.  It is perhaps the clearest example of a Cold War-style confrontation since the US invasion of the Bay of Pigs – except the roles are reversed.

In 1961 the US felt strategically on the back-foot vis-à-vis the USSR.  In 2014 Russia feels on the back-foot vis-à-vis the US.

Little has changed in half a century.  Nothing qualitative will change in terms of international relations until we undergo a qualitative change of approach to international relations.

Yesterday the UN General Assembly passed a resolution describing the Moscow-backed referendum that led to Russia’s annexation of Crimea as illegal.  The vote was 100 for, 11 against, 58 abstaining.

That is not exactly the international community speaking with one voice.  It may well be illegal but a political declaration is not a reassuring way of registering the claim.

Nor was the international community speaking with one voice on 21 April ’61, when the Assembly considered a ‘complaint regarding the various plans of aggression and acts of intervention being executed by the United States of America against the Republic of Cuba, constituting a manifest violation of its territorial integrity, sovereignty and independence and a clear threat to international peace and security’.  The vote that day was 59 for, 13 against, 24 abstaining.

There are those who argue that the UN has lost its legitimacy.

The UN retains broadly the same legitimacy it always had – which is decidedly modest but better than what existed previously – which was, nothing.

After almost a century since states developed the option of judicial settlement through the ‘Permanent Court of International Justice’, and half a century since version II was created in the form of the present ICJ, one might have thought we could have evolved to the point where these kinds of crises are able to be settled peacefully by international law.

The Crimea situation could effortlessly be referred to the International Court of Justice.  Ukraine could take a case against Russia (as New Zealand did against France over nuclear testing in the Pacific). And / or the General Assembly could, by majority, call for an advisory opinion.

Advisory opinions of the ICJ are only that – advisory.  But they are widely respected, and therefore carry far-reaching legitimacy.

If we continue to delude ourselves that this kind of classical state-to-state crisis is amenable to political solution through strategic posturing of the kind we are currently witnessing, whichever side happens to have the moral/political advantage of the moment, we shall not learn how to conduct international affairs with any insight in the global age.

Only when UN member states – all of them including the large bears and swift eagles – agree to accept a judicial judgement, made by others, to get through critical political moments, will we begin to mature as a global community.

When that happens, citizens everywhere, including in Ukraine including in the Crimea, will actually  be safer than doing the haka, with bullets and ballistic missiles.


It has been pointed out to me (I once knew this kind of thing…..) that Russia has not lodged a declaration accepting the ICJ’s compulsory jurisdiction,

Neither, in fact, has Ukraine.

(To their considerable credit, large states such as Germany, India and Japan, and one of the P-5, UK, have done so).

This does not preclude an ICJ engagement.  Two options:

1.       The major powers could call upon both Ukraine and Russia to make such a declaration under Article 36(2) of the Statute, and agree to accept a judgement of the Court.

2.       The General Assembly, instead of presuming to make a political declaration on what is a legal matter, could ask the Court for an advisory opinion.

If either of these were followed, the rule of law at the global level would be reinforced at a critical juncture.

Published in Justice & Democracy | Society & Culture by Kennedy Graham on Fri, March 28th, 2014   

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