The variety of timelines available to guide the interested reader through the apparent linear events leading to present problems in Ukraine (similar guides are available for the Arab Uprisings, for example, the Guardian’s interactive timeline) brought to mind a question my father likes to ask when anyone is becoming particularly fervent about politics of any kind ‘Where were you in 1916?’ Asking this question often stops a verbose and highly excited claim about the rights or wrongs of a given political conflict in its tracks. It forces the speaker to check their particular status in proclaiming the absolute correctness of their position. (The actual events surrounding the 1916 Easter Uprising in Ireland being largely irrelevant but being present enabled some to claim their rightness of their perceived truth over others) This very much reminds me of the kinds of statements being made with regard to Ukraine. That it was always part of Russia, or rather after Catherine the Great took it from the Ottomans under the 1774 Treaty of Küçük Kaynarcathat when it became independent and then, in 1783, part of Russia, it was originally Greek/Viking, that it was a drunken Khrushchev in the 1950s that ‘gave’ Crimea to Ukraine, that we should start with the break-up of the USSR in August 1991 when Ukraine declared independence, the 2004 Orange revolution or, indeed the decision of President Yanukovych in November 2013 to not sign an agreement on trade with the EU.
Picking the starting point matters. From when it is adjudged we should start looking at claims, both legal and political, makes for a variety of arguments more or less worthy of inclusion. The use of history for particular ends or to claim absolute truths is not a new critique but it is time’s use in public international law as part of specific rules which is of import here.
Public international law rules regarding times and lines on maps have some peculiar and longstanding outcomes. For instance, when reading a treaty and deciding on its claims you should look at the law as it stood at the time of its signing. Thus, when looking at the claims to Gibraltar, for example, one ought to examine the Treaty of Utrecht 1713 in the context of the law as it stood at the time. Even though commentary on that treaty suggests its terms with regard to the status of the various actors were already out of date when it was signed and it seems odd that a war about the Holy Roman Empire ended up trading bits of the Iberian peninsula, it is the law of 1713 that we ought to examine. (Another relevant example is the 1774 Treaty of Küçük Kaynarcathat, between Russia and the Ottoman Empire, where upon Russia rescinding its claims to Crimea it ought to revert to the Ottomans). Another instance is the African Union‘s decision, in its constituent document, to continue with the policy that borders drawn by European colonial powers that characterise African statehood, should stand. No matter that other continents, through war or agreement, largely settled their borders amongst themselves or that examples such as South Sudan or other border disputes, have resulted in mass violence these arbitrary lines stand. Thus, the Congress of Berlin 1884-85 and the period of decolonisation post World War II are the periods from which these borders are settled.
The one major exception to these rules being Article 103 of the UN Charter, another treaty widely regarded as being out of date upon implementation as it sees inter-state wars as paramount rather than the intra-state wars that followed. The UN Charter puts itself ahead of any treaties signed before or after its creation. So one set of treaty rules looking at a static moment in time with another, namely the Charter, aiming to move both backward and forward through international law’s creation and operation.
The absurdity of some of these rules is obvious, though their rationale, certainty, is also important to law. Certainty in law, and particularly international law, enables some measure to predict what law entitles, enables, protects, an actor to do or from. Yet, Ukraine epitomises how such claims to absolute truth can be entirely predicated upon choosing one moment. So it is inconvenient to Russia’s claims that its legal assertion to claiming Crimea dates from 1774 and that the USSR’s, a state that no longer exists, internal re-bordering of the 1950s as well as the independence declaration of Ukraine in 1991, suggests that it gave up such a claim. Thus, perhaps Turkey, as the Ottoman successor state, could in fact make some kind of claim to Crimea. Or alternatively, Russia relies on self-determination and replays Catherine the Great’s annexing of Crimea in 1783. Yet, politically, it is perhaps convenient for Putin to claim to be the successor of Catherine the Great as this grants historical lineage to Russian greatness and intervention to protect “Russians” from outside forces.
All of these wranglings largely ignores the individuals throughout Ukraine, including Crimea and relies instead on the form of Great Power brokering that the UN Charter, in its forward and backward temporal claims, was intended to eliminate, though arguable it merely enforced these kinds of structures. Picking one moment as the source of legitimacy and authority is absurd but often it is how international law seeks to settle these claims. Temporal lines and arguments become paramount over any other claims. This is not to suggest that history is not important or worth considering but perhaps that law ought not to be shackled to it. Perhaps it is time to challenge these temporal claims, to move beyond moments in history that law decides are important, to check the verbosity of claims to legal truth based on a historical issues from which very little actual understanding may be garnered, to maybe to ask Mr Putin where was he in 1783?
Incidentally my father’s own answer to the question as to where was he in 1916 is ‘under the bed.’