Pedestrians pass part of a giant wall mural of Crimea and the city of Sevastopol filled with the flag of the Russian Federation. (Photographer: Andrey Rudakov/Bloomberg)

Trump Can’t Recognize Russia’s Crimea Grab

(Bloomberg Opinion) -- President Donald Trump has left it unclear whether he might recognize Crimea as part of Russia. But can he actually do it? That’s not a trivial question.

Trump’s National Security Adviser John Bolton and his press secretary Sarah Huckabee Sanders have said that the U.S. doesn’t recognize the 2014 annexation of the Black Sea peninsula that had been part of Ukrainian territory since 1954. But the president himself would only say, “We’re going to have to see.” Coupled with a report, which Trump has never denied, that he told G-7 heads of state recently that Crimea was Russian because everybody there spoke Russian, that leaves the matter open. Or, rather, it’s open to the extent that a U.S. president has the power to extend recognition to an act of anschluss

Whether non-recognition of the Crimean annexation is required of United Nations members is a complex matter of international law. On the one hand, it was a clear violation of Ukraine’s sovereignty and territorial integrity, and several UN documents approved by member states in the 1970s say that such acts are not to be recognized.

On the other hand, there’s no UN Security Council resolution specifically declaring Russia’s Crimea grab an act of aggression or a forcible annexation and thus banning its recognition. Russia has vetoed a draft resolution to that effect, and a subsequent resolution passed by the UN General Assembly didn’t have the legal force to forbid the recognition of Crimea as Russian; it only called on countries to refrain from it. That gives credence to the argument that non-recognition, including by the U.S., is merely a voluntary sanction that can be ignored.

Russia holds to the latter interpretation, and so could Trump, who doesn’t think much of international organizations. U.S. law and practice are more relevant to what he might do and what he might get away with.

U.S. administrations have asserted the right to extend diplomatic recognition to countries. In 2008, the U.S. recognized Kosovo when President George W. Bush accepted that country’s request to establish diplomatic relations. No intervention from Congress was necessary. But Crimea’s case is different; there’s no new entity with which the U.S. could exchange ambassadors. The U.S. already has diplomatic relations and various treaties with both Russia and Ukraine.

The U.S. has a long history of not recognizing forcible annexations because they “may impair the treaty rights of the United States or its citizens” in the victim states, as Secretary of State Henry Stimson wrote in a 1932 note to the Japanese government concerning Japan’s annexation of Manchuria from China. One could argue that the recognition of Crimea, which Ukraine would inevitably see as a threat to its statehood, would be damaging to the rights and interests of the U.S. and its citizens, for example, under the bilateral investment treaty with Ukraine, their mutual legal assistance agreement — or indeed under the nuclear nonproliferation treaties Ukraine signed under U.S. pressure in the 1990s.

The Stimson doctrine, however, is just a diplomatic practice, not a legal restriction, and there have been exceptions to it. The U.S. gave the green light in 1975 for the Indonesian invasion of East Timor when it was a Portuguese colony vying for independence. No immediate U.S.-driven repercussions for the Suharto regime in Indonesia followed, though the U.S. backed subsequent U.S. resolutions calling for the withdrawal of Indonesian troops.

This could be seen as de-facto recognition of Indonesian sovereignty over East Timor, but it wouldn’t be a strong precedent for Crimea. At the time of the Suharto invasion, the U.S. didn’t have any laws in which East Timor was mentioned as part of Portugal or a potentially independent state. By contrast, Congress has explicitly declared Crimea part of Ukraine and condemned the annexation.

The Countering America’s Adversaries Through Sanctions Act, passed by Congress and signed by Trump last year, has this to say: “It is the policy of the United States … to never recognize the illegal annexation of Crimea by the Government of the Russian Federation or the separation of any portion of Ukrainian territory through the use of military force.”

“Never” should be clear enough. If Trump extends any kind of formal recognition to the Russian takeover, such a move would conflict with U.S. law. Congress and the courts would probably get involved.

There’s not much Trump can do on Crimea without triggering the checks and balances of the U.S. government. He can’t even drop Crimea-related sanctions against specific companies and individuals without asking Congress first. Even if Trump wanted to trade Crimea to Russian President Vladimir Putin when they meet in Helsinki on July 16, perhaps for some concession in the Middle East or on arms control, he’d need to go to Congress for approval. Given the strong support the sanctions act received — Trump only signed it because he knew his veto would be overturned — such approval would be in doubt.

Trump may act as if there are no limits to his power, and he may even win important court rulings, as in the case of his travel ban. On Crimea and Ukraine, however, he’s hemmed in. Whatever concessions he may want from Putin, he’ll need different bargaining chips.

©2018 Bloomberg L.P.