A minimal proceduralist argument against Crimean independence

As the Ukrainian crisis continues to unfold, attention has shifted from the deposed president Viktor Yanukovych to the Crimea peninsula.  Crimea has an ethnic Russian majority and as such are much less sympathetic to the pro-Western uprising that toppled Yanukovych (see the very useful maps posted here).  Now the Russian military has occupied the region, and there is some movement towards either independence or annexation into Russia.  Western powers are unsurprisingly outraged at this military intervention, with UK Prime Minister David Cameron saying there is “no excuse” for Russian occupation.  I would like to suggest that the case against Russia’s use of force is not as clear cut as it first appears, as it could potentially be justified on the grounds of promoting Crimea’s right to self-determination.  Still, careful attention to how recent events unfolded do indicate that both the occupation and recent (quite quick) moves for separation from Ukraine are illegitimate on relatively minimal procedural grounds.

The right of a people to self-determination is central to democracy.  A paradigmatic instantiation of this right is free and fair elections of the government, but more relevant to the present case is the right to secede.  There is some disagreement in the philosophical literature over the scope of this right.  Alan Buchanan has prominently identified two dominant strains of thought in his 1997 article “Theories of Secession”:  Remedial Right Only Theories require that secessionists have some serious grievance (such as widespread and ongoing human rights violations) that warrant secession, while Primary Right Theories do not have such a grievance requirement.  As I will be arguing against secession in the present case, I will assume for the sake of argument that Primary Right Theories are correct and no grievance is necessary.  What is necessary, however, (on any plausible theory of secession) is a just procedure – one that at minimum is respectful of and sensitive to the will of the local population.

Russia’s occupation is ostensibly aimed at protecting Russian citizens and military in Crimea.  Yet that merely justifies an evacuation of Russians from Crimea, rather than a military occupation.  Indeed, the new premier of Crimea (more on that in a moment) Sergei Askenov has specifically asked for Russian assistance in securing “peace and tranquility” in anticipation of a referendum on Crimea’s status to be held on March 30.  The actual effect, if not purpose, of the occupation is then to support this move.  Still, if that were the whole story, there would not be much objection (on minimal proceduralist grounds) to the occupation and indeed the referendum itself.  Russia’s intervention would a) be at the request of a democratically-elected local head of government and b) ensure that the plebiscite would occur under safe and fair conditions.  It would both be procedurally fair and be promoting a further fair procedure (a safe referendum), making it a win-win from a proceduralist perspective. 

However, anyone mildly attuned to recent reports will notice how that is not a complete picture of what has transpired in Crimea.  Crucially, Askenov was not elected under anything resembling a fair procedure.  Instead, Askenov was swept into power when commados (believed to be Russian – and indeed they hoisted a Russian flag above the building) seized the regional parliament and lawmakers reacted by appointing Askenov as regional Prime Minister.  It is hardly a stretch to suggest that the acts of parliament made at gunpoint lack legitimacy.  And if Askenov is not a legitimate leader of Crimea, he lacks the authority to both agree to a Russian occupying force and request a referendum on Crimea’s status.  The referendum would be held in less than a month, hardly time for a full and open public debate on Crimea’s status.  Moreover, it would be subject to legitimate concerns of intimidation by the occupying Russian forces who have shown little restraint in interfering with democratic decision-making in the region thus far.

One might respond that opposition to Crimea’s occupation and attempt at independence is hypocritical.  Westerners for the most part supported the ouster of democratically-elected Yanukovych via procedurally-suspect means; he was essentially run out of the country by violent protesters.  Those protesters certainly had grievances, but it is hard to tell whether they were truly representative of the whole of Ukraine – especially the southeastern portions that supported Yanukovych.  If Askenov’s government is illegitimate, so is Ukraine’s current transitional government and it turns out that Yanukovych is the legitimate president.  He could, then, fairly request Russian military assistance (on even more solid ground than Askenov, a mere regional official) as well as sign off on Crimean independence.

An easy response is to say that, in fact, none of them are procedurally legitimate – Yanukovych, Askenov, or the transitional government.  So no one has the authority to allow Russia into Ukraine or propose the referendum.  To gain legitimacy, there would need to be new (free and fair) elections; the winners would then be in a position to decide whether or not to offer the referendum and allow Russian troops into the country.  But more strongly, there is a significant asymmetry between the way Askenov and the transitional government were brought to power.  Yanukovych was subject to massive protests by everyday Ukrainians.  While they might not be representative of Ukraine as a whole, there is at least some claim to their movement as literally of the people.  Askenov, on the other hand, was only promoted based on the actions of armed commandos – likely under orders from Russian military officials, and with little claim to being representatives of the Crimean people.  Even if the commandos were Crimean, it is fair to say that popular uprisings are substantially more procedurally legitimate than military coups.

It may be that, at the end of the day, Crimea’s (and perhaps other areas of southeast Ukraine) differences are too great and a separation must occur.  There are strong geographic determinants of pro-Russian and pro-Western camps, and perhaps those camps are too strongly entrenched to maintain a unified government that all groups accept as legitimate.  But that decision should not be made hastily and at the point of a gun – proper procedures, including public debate free of military coercion and a referendum stemming from a duly-elected government are needed.