A Solution to the Crimean Crisis: Egalitarian Shared Sovereignty Applied to Russia, Ukraine and Crimea

Abstract

Sovereignty is intrinsic to conflict in international relations. There are various sovereignty disputes around the world caught between legal and political limbo, the status quo and continuous tension, with various negative consequences for all the parties involved. It is increasingly clear that the available remedies have been less than successful, and that a peaceful and definitive solution is needed. The essay considers how theories of distributive justice, and particularly the hypothetical thought experiments proposed by Rawlsian theory, can be used productively with the concept of sovereignty and explores the possibility of a solution for sovereignty conflicts such as the Crimean case by the application of a Rawlsian methodology.

Notes

¹ By moderate scarcity I mean that there are enough resources for all the agents but these resources are not unlimited. In the case of any agents allocating a portion of these resources or all the resources, the rest of the agents will see their comparative situation at a disadvantage. In the case of Crimea, there is only one territory named ‘Crimea’ and all the agents argue over the exclusive sovereignty of that land. It follows that by allocating the exclusive sovereignty only to one of the agents involved in the dispute, all other agents will undergo a complete loss of their sovereignty claims.

² See previous note for further clarification. If the allocation of sovereignty were exclusive to one of the claimant agents the others would be at a disadvantage. In the example, if Russia were allocated exclusive sovereignty over Crimea, a direct consequence would be that Ukrainians and Crimeans would see their sovereignty claims vanish.

³ The Island of Palmas Case (or Miangas), United States of America vs. The Netherlands, Permanent Court of Arbitration (1928), available at: http://pca-cpa.org/fr/cases/94/, accessed 16 August 2017; The Legal Status of Eastern Greenland Case, Denmark vs. Norway, Permanent Court of International Justice (1933), available at: http://www.worldcourts.com/pcij/eng/decisions/1933.04.05_greenland.htm, accessed 16 August 2017.

⁴ The Temple of Preah Vihear Case, Cambodia vs. Thailand (1962), available at: http://www.icj-cij.org/en/case/45, accessed 16 August 2017.

⁵ The Legal Status of Eastern Greenland Case, Denmark vs. Norway, Permanent Court of International Justice (1933). (See, ‘Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53 (Apr. 5)’, Publications of the Permanent Court of International Justice Series A./B. No. 53, Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1933, available at: http://www.worldcourts.com/pcij/eng/decisions/1933.04.05_greenland.htm, accessed 4 September 2017).

⁶ The distinction between ‘colourability’ of a claim and a winning claim has to do with two different steps in a judicial procedure. The colourability of the claim is related to admissibility—‘X’ has a reasonable, non-frivolous ground to claim. It is only when the right to claim is acknowledged (it is admissible) that the Court will consider facts and law and decide upon the case. There are many cases that can be quoted to illustrate the use of this expression in courts of the United States—such as, Jones v. Barnes, 463 US 745, Supreme Court 1983; Arbaugh v. Y & H Corp., 546 US 500, Supreme Court 2006; Richardson v. United States, 468 US 317, Supreme Court 1984; and many others. In the United Kingdom Criminal proceedings, for example, it is equivalent to the ‘is there a case to answer?’ standards. See Regina v. Galbraith (1981) WLR 1039. See also Section 97, Criminal Procedure (Scotland) Act 1995 and the ‘no case to answer’ standard.

⁷ By ‘lumpy goods’ I mean that sovereignty is a multi-level concept that is constituted by many different areas, objects, and activities that are different in nature. Therein, to characterise sovereignty as, for example, a right or prerogative, of a question of territory would be inadequate because of it incompleteness.