Музей-заповідник “Херсонес-Таврійський”
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“Non-recognition policy. How to protect Chersonese from the occupier?”

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What does the policy of non-recognition mean?

The Doctrine of non-recognition is related to the name of the United States official Henry Lewis Stimson. When in 1923 Japan occupied part of China’s territory Henry Stimpson, then US Secretary of State, issued a note to Japan and China reflecting the US response to such illegal actions committed by Japan.

The document stated that the United States would not “[…] recognize any treaty or agreement entered into between those Governments or agents thereof which may impair treaty rights of the United States or its citizens in China […]” [1][2]. Thus, it was said that third countries should not recognize the illegal forcible acquisition of territory.

After that incident, the United States repeatedly applied a policy of non-recognition: neither it recognized the Soviet Union’s occupation of the Baltic states – Estonia, Latvia and Lithuania[3], nor Russia’s occupation of Crimea[4].

Even more, in the modern world “the policy of non-recognition […] transformed into an obligation of non-recognition”, which was rightly remarked by the Judge of the International Court of Justice Krzysztof J. Skubiszewski in the case of East Timor[5].

So, now it is not just the right but the obligation of the state to react to such infringement.

The beginning of the normative enshrinement of the policy is connected with establishing of the States’ obligation to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” in Article 2 (4) of the UN Statute[6]. Further, adopted during the Cold War, the Helsinki Final Act also contained prohibition of territorial change “by means of military occupation or other direct or indirect measures of force in contravention of international law”. Moreover, it was stressed that “no such occupation or acquisition will be recognized as legal” (Article 4)[7].

Half a century after the adoption of the UN Charter, the UN Commission on International Law enshrined in Articles 40, 41 (2) of The Articles on Responsibility of States for Internationally Wrongful Acts the prohibition to recognize lawful a situation created by a serious breach of peremptory norm of general international law (it is generally agreed that the prohibition of aggression is one of such norms)[8][9].

In addition, the provisions of international humanitarian law stipulate the invariability of the territorial status as a result of its occupation (Article 4 of the Additional Protocol (I) to the Geneva Conventions)[10].

The policy of non-recognition is, in many cases, a joint reaction of the world community to the illegal actions of a certain state. Accordingly, examples of specific actions that a state should take or refrain from are best analyzed based on the texts of UN Security Council and UN General Assembly resolutions.

Such actions affect various spheres of public life. The list includes:

Prohibition of the entering into any diplomatie, consular, trade, military, cultural or other relations in these spheres and termination of the existing;

refrain from any action which would assist and encourage the illegal régime and, in particular, to desist from providing it with arms, equipment and military material and suspension of military assistance, termination of economic, financial and technological assistance;

taking appropriate measures, at the national level, to ensure that any act performed by officials and institutions of the illegal regime shall not be accorded any recognition by the competent organs of their State;

suspention of any membership or associate membership that the illegal regime has in the specialized agencies of the United Nations and refuse any request for membership from that regime;

taking effective measures to prohibit all individuals, corporations and other institutions under their jurisdiction from the state having any dealings with the “independent state”, to reject travel documents issued by the “independent state”;

withhold relations with companies owned or directly controlled by a “state”;

discourage their nationals or companies of their nationality not under direct governmental control from investing or obtaining concessions; undertake a detailed study and review of all bilateral treaties between themselves and the “independent state” in so far as these treaties contain provisions by which they apply to the occupied territory[11].

No universal list of actions which could be applied in every situation does not exist as the concluding list has to be determined separately in each case depending on the circumstances.

The non-recognition policy of the Crimean occupation committed by the Russian Federation was established in 2014 as a consolidated reaction of the international community to the Russian occupation. In particular, in General Assembly Resolution № 68/262 on Territorial integrity of Ukraine General Assembly calls upon all States to “refrain from actions aimed at the partial or total disruption of the national unity and territorial integrity of Ukraine, including any attempts to modify Ukraine’s borders through the threat or use of force or other unlawful means”[12].

The European Parliament has condemned Russia’s aggression in Crimea as “a grave violation under international law of Ukrainian sovereignty and territorial integrity”, and “considers the annexation of Crimea to be illegal and refuses to recognise Russian de facto rule on the peninsula” in Resolution (2014/2717(RSP))[13].

In both cases, the non-recognition of Russia’s occupation of Crimea was an expression of the reaction of a number of states. 

Destroying of the cultural heritage site Chersonese Tavriya by the Russian Federation

The activities of the Russian Federation after the occupation of Crimean peninsula became an example of the practices to which Russia is already accustomed.

Distortion and appropriation of foreign history and culture by the Russian Federation as a method of waging war together with impunity for illegal excavations, appropriation and export of cultural property and other destructive activities in the field of cultural heritage results in a sense of absolute impunity for criminal activity against cultural monuments heritage of the Russian Federation in the Crimea.

Destruction and/or damage of the Ukrainian objects of material cultural heritage in Crimea have become widespread. Such facts are mostly public and well-known. Moreover, the destruction of monuments is carried out through prominent national cultural and scientific institutions of the Russian Federation which are Petersburg Hermitage Museum and the institutions of the Russian Academy of Sciences.

The occupying power ignores not only the opinion of the local population, but also regularly openly violates human rights (including property rights), destroys unique monuments of archeology, architecture, park art and others that have considerable historical, artistic and scientific importance, and have significant value in terms of aesthetics, ethnology and anthropology. The Russian Federation also disregards the demands of the world community to stop the destructive activities in Crimea.

Under threat of destruction is the UNESCO World Heritage Site “Ancient city of Chersonese and its Chora”, for which the Russian authorities are realizing plans which are incompatible with its protection status, as well as other cultural heritage sites included in the previous UNESCO list (Sudak fortress, Khan’s Palace, etc.).

Expropriation of cultural heritage sites and other property, large-scale so-called archaeological (in fact, no – author) excavations, destruction of the cultural layer through the use of heavy construction equipment, chaotic construction on the site, removal of archaeological artifacts from archaeological sites and other illegal actions of the occupying power in Chersonese and its Chora, their nature and systematicness indicates a deliberate violation of international humanitarian law and international human rights law.

Russia is systematically and gradually destroying the UNESCO World Heritage Site, Ancient City of Tauric Chersonese and its Chora which has worldwide value[14][15].

In order to resist the destructive policy of the aggressor, Ukraine must undertake a complex of measures. All these measures are crucially important and include next steps. First, to prosecute those who were and are involved in the destruction of Ukrainian sites in Crimea. Secondly, to introduce and prolong sanctions against such persons. To perform this with highest effectiveness, working with international partners is significantly important for Ukraine. Finally, to submit applications to international courts. However, in order to effectively and as fast as possible protect its state interests, Ukraine has to fill in the content and effectively use the policy of non-recognition, which was proclaimed by the UN and repeatedly confirmed by subsequent UN resolutions and EU documents, which were mentioned above.

“To fill in the content policy of non-recognition” in this case means to formulate a list of actions (in connection with the destructive policy on cultural heritage on the occupied peninsula), which, in the opinion of our state, are unacceptable. Ukraine should identify actions that are acceptable, clearly outline the positions, inform the whole world community what actions Ukraine will consider as a violation of its sovereignty, and bring this list to the attention of other states[16][17].

In addition to the already enshrined in international documents points (not to recognize that Crimea belongs to Russia, to recognize only temporary occupation, to respect Ukraine’s territorial integrity, etc.) in the context of countering Russia’s destructive cultural heritage policy, Ukraine should cooperate with other governments to consolidate in international documents or establish in their national legislation the following requirements (prohibitions):

  • to terminate business, financial, cultural, scientific contacts with individuals and legal entities involved in illegal archeological excavations, construction of the monuments, as well as other forms of destruction or damage of Ukrainian cultural heritage monuments in the Crimea, in particular with at least such cultural and scientific institutions of the Russian Federation, as the State Hermitage, the Institute of Archeology of the Russian Academy of Sciences (hereinafter – RAS), the Institute for History of Material Culture of the RAS, the Institute of Oriental Studies of the RAS, the Russian Geographical Society, Lomonosov Moscow State University, the Pushkin State Museum of Fine Arts;
  • to prohibit scientific, business relations with institutions (and their employees) in charge of illegally transferred objects of Ukrainian state property in Crimea – objects of material cultural heritage of Ukraine in Crimea (sites of cultural heritage set of monuments of architecture, town-planning), landscape art and cultural landscapes);
  • to prohibit scientific, business relations with cultural and scientific institutions established by the Russian Federation in Crimea;
  • to prevent tourism and emigration to the Crimea, to condemn any forms of colonization (settlement) of the peninsula;
  • refrain from any form of cooperation with the Crimean occupation administration and its institutions and individuals inspired and controlled by it;
  • to qualify historical and archeological researches of the Russian Federation on TOT of Crimea as “academically dishonest”, with the corresponding negative consequences of their popularization in the spheres of museum-exhibition activity, scientific publications, international scientific forums;
  • to prohibit the establishing of cultural/creative and business ties with citizens of the Russian Federation and other states who participated in concert, theater, cinematographic and other creative activities in the occupied territory, as well as liability for violating this prohibition.

Following agreements with other states and the implementation of these principles in specific international agreements, Ukraine must constantly monitor compliance with norms and rules in the occupied territories, and respond to non-compliance through all possible diplomatic and legal instruments, including the Crimean Platform.

This is how an ideal mechanism for counteracting illegal actions of the Russian Federation should look like. However, in practice the situation is different.

For example, the state institution of the Russian Federation, the State Hermitage Museum, carries out illegal archeological excavations in the occupied territory of the Crimean Peninsula[18].  In response to such actions, Ukraine decided to impose sanctions on the Hermitage in May last year[19].

At the same time, in the autumn of the same year (2020), the Hermitage jointly and at the expense of one of the European countries holds an exhibition of material’s art objects, where it presents, in particular, objects that were discovered earlier during archaeological excavations in Ukraine.[20].

The need to implement the above requirements is formulated by experts of the subgroup “Humanitarian Policy” of Crimean platform’s expert network.

It is important that the requirement to “fill in the policy of non-recognition” in the field of protection of cultural heritage is already enshrined in the acts of the Ukrainian authorities.

Thus, the decision of the Verkhovna Rada Committee on Humanitarian and Information Policy of June 30, 2021 instructed the Ministry of Foreign Affairs and the Ministry of Culture and Information Policy to form an official position of the state on elements of non-recognition policy in connection with damage and destruction of cultural heritage of Ukraine in Crimea and illegal export of cultural values outside the occupied peninsula[21].

Currently, no information on the implementation of the Committee’s decision is not publicly available.

Consequently, “filling the content of non-recognition policy” is an important task of Ukraine in counteracting the destructive policy of the Russian Federation regarding our cultural heritage in Crimea. At the same time, the policy of non-recognition is a necessary tool for putting pressure on the occupying state, stopping further violations of Ukrainian national interests, which in our opinion is underestimated by the Ministry of Foreign Affairs of Ukraine. 

Nadiia Vaskivska,
Serhii Mokreniuk,

Regional Center for Human Rights

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[1]The Mukden Incident of  1931 and the Stimson Doctrine. Office of the historian. URL: https://history.state.gov/milestones/1921-1936/mukden-incident.

[2]The Stimson Doctrine of non-recognition of territorial conquest. URL: www.austlii.edu.au/au/journals/UQLJ/1996/9.pdf.

[3]T. Korotky, E. Lukyanchenko. From the Veles Declaration to Crimean Declaration. Ukrainian law. (Т. Короткий, Є. Лук’янченко. Від декларації Велеса до Кримської декларації.  Українське право.)  2018. URL: https://ukrainepravo.com/international_law/public_international_law/vid-deklaratsiyi-vellesa-do-krymskoyi-deklaratsiyi/.

[4]Biden: The United States will never recognize the annexation of Crimea and, together with Ukraine, will oppose Russia’s aggression. Radio Svoboda. (Байден: США ніколи не визнають анексію Криму і разом з Україною протистоятимуть агресії Росії. Радіо Свобода.) URL: https://www.radiosvoboda.org/a/news-biden-on-crimea/31123584.html.

[5]Dissenting opinion of Judge Skubiszewski. Case on East Timor. URL: https://www.icj-cij.org/public/files/case-related/84/084-19950630-JUD-01-06-EN.pdf.

[6]United Nations Charter (full text). United Nations.  1945. URL: https://www.un.org/en/about-us/un-charter/full-text.

[7]Conference on security and co-operation in Europe. Final act. 1975. URL: https://www.osce.org/files/f/documents/5/c/39501.pdf.

[8]Responsibility of States for Internationally Wrongful Acts. 2001. URL: https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.

[9]Responsibility of States for Internationally Wrongful Acts. 2001. URL: https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.

[10]Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. URL: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079.

[11]Security Council Resolution 661 (1990). URL: https://digitallibrary.un.org/record/94573/files/S_RES_662%281990%29-EN.pdf;United Nations General Assembly resolution. 27 March 2014. URL: https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/a_res_68_262.pdfUnited Nations General Assembly resolution. А/RES/2022 (XX). 1965. URL: https://undocs.org/en/A/RES/2022(XX); Security Council Resolution. 1965. S/RES/217(1965). URL: https://digitallibrary.un.org/record/90484; Security Council Resolution.  1970. S/RES/277(1970). URL: https://digitallibrary.un.org/record/90779; United Nations General Assembly resolution. 1976. A/RES/31/. URL: https://undocs.org/en/A/RES/31/6; S/13549. Security Council Resolution. 1979. URL: https://digitallibrary.un.org/record/5030; Security Council Resolution. 1970. S/RES/283(1970). URL: https://digitallibrary.un.org/record/90777; United Nations General Assembly resolution. 1982. A/RES/37/123. URL: https://unispal.un.org/UNISPAL.NSF/0/FAABB796990CF95A852560D9005240CF; Security Council Resolution.  1990. S/RES/662(1990). https://digitallibrary.un.org/record/94221; Security Council Resolution. 1990. S/RES/661(1990)1. URL: https://digitallibrary.un.org/record/94221;          Security Council Resolution. 1975.  S/RES/384(1975). URL: https://digitallibrary.un.org/record/93735; Security Council Resolution.  1984. S/RES/550(1984). URL: http://www.securitycouncilreport.org/atf/cf/{65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9}/Cyprus SRES550.pdf

[12] United Nations General Assembly resolution. 27 March 2014. URL: https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/a_res_68_262.pdf

[13]European Parliament resolution of 17 July 2014 on Ukraine (2014/2717(RSP)). URL: https://www.europarl.europa.eu/doceo/document/TA-8-2014-0009.

[14]The occupiers filled the ancient estate in Chersonesos with concrete. (Окупанти залили бетоном античну садибу в Херсонесі) depo.ua. 2016. URL: https://www.depo.ua/ukr/life/okupanti-zalili-betonom-antichnu-sadibu-v-hersonesi-27042016151900

[15]Threats of loss of the world and Ukrainian heritage site “Chersonesos of Tavria” as a result of the Russian occupation. Voice of Crimea: culture. (Загрози втрати об’єкта світової та української спадщини “Херсонесу Таврійського” як наслідок російської окупації. Голос Криму: культура) 2019. URL: https://voicecrimea.com.ua/main/articles/the-threat-loss-object-world-and-ukrainian-heritage-tauric-chersonesos-as-consequence-russian-occupation.html.

[16]Kononenko M. Crimea: how should the Ukrainian policy of non-recognition of the Russian occupation look like? (Кононенко М. Крим: якою має бути українська політика невизнання російської окупації). LB.ua. 2019. URL: https://lb.ua/world/2019/06/13/429453_krim_kakoy_dolzhna_ukrainskaya.html

[17]Mokrenyuk S. Crimean platform: content or form.Voice of Crimea: culture. (Мокренюк С. Кримська платформа: зміст чи форма. Голос Криму: культура). 2021. URL: https://voicecrimea.com.ua/main/views/krimska-platforma-zmist-chi-forma.html.

[18]Rolled under the asphalt: cultural and historical heritage as a victim of the occupiers in the Crimea. Channel 24. (Закатані під асфальт: культурна й історична спадщина як жертва окупантів у Криму. 24 канал.) 2021. URL: https://24tv.ua/yak-kulturna-spadshhina-stala-zhertvoyu-okupantiv-novini-krimu_n1652518.

[19]Decree of the President of Ukraine “On the decision of the National Security and Defense Council of Ukraine of May 14, 2020″ On the application, abolition and amendment of personal economic and other restrictive measures (sanctions)” (Указ Президента України “Про рішення Ради національної безпеки і оборони України від 14 травня 2020 року “Про застосування, скасування і внесення змін до персональних спеціальних економічних та інших обмежувальних заходів (санкцій)””) №184/2020. URL: https://www.president.gov.ua/documents/1842020-33629.

[20]Mokrenyuk S. How to understand it: Germany has become a partner of the toxic Russian Hermitage. Channel 24. (Мокренюк С. Як це розуміти: Німеччина стала партнером токсичного російського Ермітажу. 24 канал.) 2021. URL: https://24tv.ua/chomu-nimechchina-stala-partnerom-toksichnogo-ermitazhu-novini-rosiyi_n1619839

[21]Materials of the meeting of the Committee on Humanitarian and Information Policy on June 30, 2021). Матеріали засідання Комітету з питань гуманітарної та інформаційної політики від 30 червня 2021 року. 2021. URL: http://kompkd.rada.gov.ua/documents/zasid/74863.html.

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Implemented within the project “Information Platform” Voice of Crimea. Culture “- about Crimea honestly, qualitatively, actually” with the support of the Media Development Fund of the US Embassy in Ukraine. The views of the authors do not necessarily reflect the official position of the US government.

 

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