On March 6, 2014, the Parliament of Crimea adopted a Resolution No.1702-6/14 that provided for a secession referendum to be held on March 16, 2014. Having been arranged at 10 days notice, the referendum was characterised by a complete lack of transparency regarding the composition of the lists of voters, the electoral commissions as well as the absence of impartial international observers. Moreover, the initiative did not offer its voters the status quo option by leaving only two possibilities: (1) to join the Russian Federation as a federal subject or (2) to return to the 1992 Constitution of Crimea and be “an integral part of Ukraine”. However, the 1992 Constitution entitled Crimea to full sovereign powers in terms of establishing relations with other States, which means that whatever the choice of the Crimeans would be, it would de facto break from Ukraine (for more details see this previous post). It was reported that the choice to join Russia was supported by more than 96,7% of all voters. In other words, in Crimea a unilateral secession took place. Subsequently, the region declared independence and further asked the Kremlin to join Russia. Notably, the referedum results were recognised only by several developing countries that have close ties with Russia.
A right to unilateral secession can be defined as a right of a minority-people to separate a part of the territory of the parent State on the basis of that people’s right to self-determination. However, as it follows from the Declaration on Principles of International Law, the Kosovo Advisory Opinion (International Court of Justice) and the Quebec case (Supreme Court of Canada), in modern international law unilateral secession of “sub-states” is neither prohibited nor allowed.
For instance, in the Kosovo Advisory Opinion, the ICJ evaded the question of whether the Kosovo population could legitimately secede as a manifestation of their right to self-determination. In the Quebec case, the Supreme Court of Canada adopted a conservative construction of “external self-determination” as a right that may be exercised under limited conditions only. Thus, no precedent for a right to secede was established in judicial practice. Though, exceptions to this neutrality may arise from the interplay of the principles of territorial integrity and self-determination.
The principle of self-determination allows a people to choose its own political status and to determine its own form of economic, cultural and social development. It is recognised in a number of fundamental international instruments, such as the UN Charter, the Declaration on Principles of International Law, the Declaration on the Granting of Independence to Colonial Countries and Peoples, the International Covenant on Civil and Political Rights, the CSCE Helsinki Final Act, the African Charter of Human and Peoples’ Rights, the CSCE Charter of Paris for a New Europe, and the Vienna Declaration and Programme of Action. Moreover, it was affirmed by the International Court of Justice in the Namibia, Western Sahara and East Timor cases, where its erga omnes character was confirmed. At the same time the abovementioned documents recognise the principle of territorial integrity, which may be in contradiction with the principle of self-determination. For instance, paragraph 6 of the Declaration on the Granting of Independence to Colonial Countries and Peoples stipulates that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”.
The complete implementation of the principle of self-determination undermines the principle of territorial integrity. In other words, only legal secession would not undermine territorial integrity of the parent state.
There are several circumstances when secession may be regarded as legal: (1) it shall concern people in territories that are subject to decolonization; (2) it shall be envisaged by the national legislation of the parent state concerned; (3) the territory inhabited by a certain people should be occupied or annexed after 1945; (4) the secessionists shall be “a people”; (5) their parent state shall flagrantly violate their human rights and (6) no other effective remedies under national or international law may exist, if any of these conditions are met.
In addition, special attention shall be brought to the paragraph 88 of the Written Statement by the Russia in the Kosovo Advisory Proceedings before the ICJ where it was stated the following: “[T]he Russian Federation is of the view that [international law] may be construed as authorizing secession under certain conditions. However, those conditions should be limited to truly extreme circumstances, such as an outright attack by the parent State, threatening the very existence of the people in question. Otherwise, all efforts should be taken in order to settle the tension between the parent State and the ethnic community concerned within the framework of the existing State.”
Is the Crimean secession legal?
No. None of these circumstances are present in the case of Crimea.
First, Crimea is not subject to decolonisation. Under Article 134 of the Constitution of Ukraine “The Autonomous Republic of Crimea is an integral part of Ukraine and all issues delegated to its authority are resolved within its framework of reference as determined by the Constitution of Ukraine.”
Second, secession is not envisaged by the Constitution of Ukraine as a parent state. Generally, all political systems insist on legality of secession only through constitutional means. For instance, the Supreme Court of Canada in the Quebec case held that “any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada”. The Supreme Court of Alaska in the Kohlhaas v Alaska case (2006) found that a referendum on secession would be unconstitutional. The Ukrainian legislation is no exception. Article 73 of the Constitution stipulates that any “alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum”, not by the local one.
Third, the territory of Crimea was not occupied or annexed after 1945.
Fourth, the secessionists (i.e. Russian population of the Crimea) may not be regarded as “a people”. As it follows from the Quebec case “a people” shall be governed as “part of a colonial empire”, be “subject to alien subjugation, domination or exploitation”, be “denied any meaningful exercise of its right to self-determination within the state of which it forms a part”. And in all other circumstances, “peoples are expected to achieve self-determination within the framework of their existing state”.
And finally, there is no evidence that the rights of the Russian population in Crimea have ever been subject to flagrant human rights violations from the government of Ukraine. The OSCE High Commissioner on National Minorities found no evidence of violations or threats to the rights of Russian speakers during her visit to Kyiv and Crimea. Thus, all claims that the Russian speaking population of Crimea were facing oppression and violence are, at the very least, groundless.
Jus cogens nexus
International law cannot be neutral regarding the unilateral secession of Crimea as the declaration of independence of Crimea was effected through the Russian military assistance. This argument is supported by the ICJ in the Kosovo Advisory Opinion. In particular, in paragraph 81 the following is stipulated: “The illegality attached to [some other] declarations of independence … stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).” In other words, a unilateral declaration of independence will be recognized as illegal where a violation of jus cogens principles took place. Here, an unlawful secession in violation of jus cogens occured as Russia violated jus cogens principle of non-use of force under Article 2(4) of the UN Charter. And where a declaration of independence is adopted in such manner, foreign states are under obligation to withhold or withdraw recognition.
Despite the fact that modern international law is neutral regarding the unilateral secession of sub-states, the neutrality is not a question in the case of Crimea, as its unilateral secession was effected through Russian military assistance. And, hence, the position of the international community of states should be more tough to stop the aggressor.
Quebec case, 2 S.C.R. 217, para.123 (1998); Aaland Islands case, L.N.O.J. Spec. Supp. No.3 (1920); Pellet A., Ellet A., The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples, 3 EJIL 178.
Articles 40 and 41 of ILC Articles on State Responsibility.