Ex Injuria Jus Non Oritur, Ex Factis Jus Oritur, and the Elusive Search for Equilibrium After Ukraine

Abstract

Russia’s 2014 annexation of Crimea following the forestalled Euromaidan movement in
Ukraine prompts a reconsideration of the international laws governing regime transition. State
secession and territorial acquisition are reconsidered within the framework of the primordial
Roman law principles of ex injuria jus non oritur and ex factis jus oritur in light of recent doctrinal
problems stemming from Kosovo and other areas of the former Soviet Union. The problem of
implementing a peer review system of orderly state secession is assessed in terms of international
law’s ongoing struggle to balance countervailing interests in legitimate governance and effective
rule grounded in social fact. Factors complicating achievement of equilibrium are identified and
discussed, including the selective application of rules, the lure of uti possidetis, and the
International Court of Justice’s (ICJ) perceived avoidance of juridical guidance in its Kosovo
Advisory Opinion.