CYIL 2015

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.” 56 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. 57 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.” 58 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. 59 In any case the suspicion about Russian influence is considerable. The speeding up 56 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).

57 Ibid. , s 152 (odst. 81). 58 Ibid. s. 153 (odst. 109). 59 Ibid .

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