Crimean Secession: No Right to Divorce

In the beginning of March this year the topic of secession and self-determination in international law became once more topical. This time the wind of territorial change blows from Eastern Europe. In view of recent developments in Ukraine and, in particular in Crimea, the news hardly comes as a surprise to anybody.

On 6 March 2014 the parliament of Crimea announced its decision to secede from Ukraine and to join the Russian Federation. By the same resolution the Crimean parliament decided to hold a referendum as to the status of Crimea on 16 March 2014 and started talks with the Russian authorities concerning its integration.  The Ukrainian central authorities have taken the view that by announcing the referendum on the question of secession the Crimean parliament has overstepped the limits of its powers. On the following day the acting President declared the resolution of 6 March 2014 unlawful and void and referred the matter to the Constitutional Court of Ukraine with a request to opine on compatibility of the resolution with the Constitution of Ukraine. Conveniently enough, at the same time the Russian parliament started working on a bill allowing an entity to join the Russian Federation as a result of a referendum held on the territory of the entity or on the request of its governing body, failing existence of an effective central government capable of concluding an international treaty on the matter.

The present post will examine briefly whether the domestic legal framework entitles Crimea to secede, including in a manner chosen by the Crimean parliament. It will also consider whether international law confers such a right on Crimea.

Crimea holds a status of an autonomous republic within Ukraine. Despite the existence of an autonomy in its administrative structure, Ukraine as proclaimed by its Constitution is a unitary state with sovereign powers vested in the peoples of Ukraine and Crimea as integral part of its territory.

In its decision announcing the intention to join the Russian Federation and to hold a referendum on the matter the Crimean Parliament referred to the Constitution of Crimea, a document which regulates the status of the peninsula as an autonomous entity and the powers of its governing bodies. The Constitution of Crimea also touches on the issues of territorial changes. Any changes concerning the Crimean territory may be introduced with due regard to the local referendum and the decision of the Crimean parliament subject, however, to compliance with the Constitution of Ukraine. While this provision constitutes a doubtful basis for secession, a clear answer comes from the Constitution of Ukraine. It upholds the principle of territorial integrity and inviolability of its borders and proclaims that any changes with regard to the territory of Ukraine shall be made exclusively on the basis of national referendum. It may be easily foreseen that according to both the Constitutions of Ukraine and Crimea, any inconsistencies between the two are to be resolved in favour of the former.  Under the domestic legal framework, the Crimea thus does not possess a right to secede from Ukraine and any decision taken by its local authorities or by local referendum to that effect will be in contradiction with the Ukrainian Constitution.

International law will not be much of assistance to Crimea in its attempts to leave Ukraine either. While it is true that there is no specific rule prohibiting such unilateral secession, International Law recognizes no right of unilateral secession and tends to be more sympathetic to the right of a state to protect its territorial integrity and maintain the stability of its borders.

The only exceptional circumstance under which the sanctity of the territorial integrity of a state may be trumped in favour of separation is in the context of self-determination. It is now the prevailing view that the right to self-determination in and of itself does not amount to a right to secede. However, it may entitle the entity to leave the parent state under certain conditions. These circumstances were articulated by the Supreme Court of Canada In re Secession of Quebec (1998), an advisory opinion concerning the existence of a right to unilateral secession under the national and international law. Such a right exists in the situation of former colonies and oppressed people (for instance, those under military occupation). It can also be exercised by a group which is denied meaningful access to government to pursue their political, economic, social and cultural development. The group seeking separation on these grounds may, however, resort to secession as a last resort. This has often been referred to as ‘remedial secession’.

The issue of entitlement to secede in the context of self-determination came out about a decade later in connection with unilateral declaration of independence by Kosovo.  Although in its advisory opinion concerning accordance with the international law of the unilateral declaration in respect of Kosovo (Kosovo Advisory Opinion), the International Court of Justice (ICJ) did not address the questions of self-determination, the concept of remedial secession was readily invoked by many states in the proceedings before the Court. For instance, Russia argued in its submissions that self-determination can be exercised within the system of an existing state and only in extreme circumstances of continuing violence against a group and after exhaustion of all the other means to settle the conflict may an entity claim unilateral secession.

Neither of the exceptional circumstances justifying the remedial secession are present in case of Crimea. It is needless to say that colonial context is inapplicable in this situation,  nor has there been any oppression, domination or large-scale and continuing breach of rights in respect of the Crimean population.

The only action which may be interpreted as encroaching on the rights of the Crimean people and which recently fueled aggravation of anti-Ukrainian sentiments is the central parliament’s decision to abolish the 2012 Language Act, a piece of legislation favouring and extending the scope of use of regional languages such as Russian. In any event, the alleged breach of rights resulting from limitations of the use of language may not be said to amount to continuing blocking of the political, economic, social and cultural development of the group or to gross human rights violations. Furthermore, if language issues were a genuine concern, these differences could have been settled internally between the central government and the Crimean authorities by, for example, extending the Crimea’s autonomy. Moreover, the intention of the acting President to block abolishment of the 2012 Language Act evidences readiness of the central authorities to negotiate and make concessions.

However, the language issue is only one aspect of the multi-faceted problem of the relationship between Crimea and the rest of Ukraine.  Crimea’s wish to join Russia is the result of the continuing interplay of various factors, including the historic association of Crimea and Russia as well as longstanding Russian influence in the region. The situation is further complicated by the presence of the peninsular of the Crimean Tatar minority on the territory who have clearly expressed their support for the newly formed Ukrainian government, are citizens of Ukraine and are entitled to protection by the Ukrainian State.

Be as it may, the situation in Crimea does not reach the threshold necessary for the exercise of the right to remedial secession. No such right is conferred on an autonomous entity by the domestic legal framework either. However, if the secession and integration with the Russian Federation takes place, the eventual status of Crimea under international law will eventually depend on the recognition of the situation by the international community.