The vote of the pro-Russian regional parliament in Crimea to secede from Ukraine and become part of the Russian Federation has deepened the crisis between the two nations. Ukraine has experienced considerable unrest regarding the legitimacy of its current government following the ousting of the country’s previous leader, Mr. Yanukouvych and its implications for Ukraine’s Russian population.
The impasse arises primarily from the reinforced presence of Russian military forces in Crimea − a situation which is a direct infringement of the sovereignty of Ukraine and which has explicitly been condemned by the international community− and the fact that the majority of the Crimean population is of Russian descent. It is perhaps worth mentioning that the Russian Federation claims that the presence of 16000 Russian troops which are currently present in Crimea falls below the threshold of 25000 which is contained in the 1997 Black Sea Fleets Agreement between the two countries.
The legality of the reinforced presence of the Russian military forces in Crimea falls, however outside the scope of the present discussion. In the last week, many representatives of the international community and members of the media have referred to the Crimean Parliament decision to join the Russian Federation and theproposed referendum on the issue as illegal and in breach of international legal norms. This commentary aims at analyzing the current circumstance in light of similar past cases of secession.
According to Article 1 of the Montevidieo Convention on Rights and Duties of States of 1933, “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states”.
The first three criteria are now treated as an international customary norm; the last criterion is regarded as ‘merely’ being a consequence of statehood. The Westphalian concept of state sovereignty is the principal cornerstone of public international law. This concept calls upon states and international bodies to refrain from interfering with the domestic affairs of other states. State sovereignty is frequently linked to its territorial jurisdiction and supremacy over the inhabitants of the state.
In general state sovereignty can ‘only’ be restrained: (1) when the state itself agrees to this –through treaties or international customary law−; (2) in the case of the principle regarding the Responsibility-to-Protect – which has attained an increased international recognition; or (3) in line with a UN Security Council resolution permitting this. Secession or the declaration of independence by a people from a state is regarded as a grave violation of the territorial integrity of a state.
Secession can be linked to the right to self-determination. The latter is enshrined in among others Article 55 of the UN Charter and Article 1 International Covenant on Civil and Political Rights. The right to self-determination can be exercised within the boundaries of a nation state – internal autonomy − or externally, that is in the form of a sovereign entity. Principles regarding secession have been developed by case-law, especially by the International Court of Justice (ICJ). Secession is the carrying-out of external self-determination.
Initially, the principle of self-determination was linked to colonization by foreign entities. However over the years the substance of this principle has gradually evolved. According the ICJ, in Western Sahara, the principle of self-determination requires free and genuine expression of the will of the peoples concerned. In the Frontier Dispute,the ICJ defined factors which can be used to prove the right to external self-determination: a history of independence or self-rule in a particular territory, a distinct culture and the will and capacity to regain self-governance.
In East Timor, the ICJ recognized the principle of self-determination as having an erga omnes character and being a jus cogens principle. This means that this right is universally applicable and enforceable by the ICJ as it forms part of the basic values of the international community as a whole. It can be concluded from the cited case law that the right to self-determination is not only tied to land but also includes the right to choose the form of governance as deemed fit. In the 1998 judgment of the Canadian Supreme Court regarding Quebec, it was established by the Supreme Court that, the right to self-determination could only be expressed externally if the people concerned are being gravely harmed –by abuse or neglect− by the central government (remedial secession). There is however no universal consensus about remedial secession.
In 2008, the ICJ was called upon to give an advisory opinion about the unilateral declaration of independence byKosovo. In the advisory opinion delivered in 2010, the ICJ mentioned that the ‘unilateral declaration’ in itself was not in contradiction with international law. On the basis of this, one could argue that the vote of the Crimean parliament, declaring its wish to join the Russian Federation, on its own does not infringe international law. The interesting aspect of this vote is therefore what the legal consequence of such an action is.
As the Crimean Parliament does not seek to achieve independent statehood as was in the case of Kosovo, one cannot apply the universal criteria regarding the principles of statehood to Crimea. It is worth mentioning that in the scheduled popular referendum the population would be asked whether they would Crimea to become a part of the Russian Federation or an Independent State.
It is however expected that the population will vote in favor of Crimea becoming a part of Russia. In the above cited Quebec judgment, the Canadian Supreme Court mentioned that the effect of unilateral secession depends on its recognition by the international community. At the moment, the international community has rejected this decision by the Crimean parliament. The question which then remains is whether or not the Crimean declaration is legitimized purely on the basis of the right to self-determination.
One may depart from the hypothesis that the voting process which took place in the Crimean Parliament conforms to a true expression of the will of an absolute majority of the Crimean population to join the Russian Federation and that the popular referendum scheduled for March 16 will confirm this.
Over the past decades, the Crimean region enjoyed a high level of autonomy within Ukraine. The Ukrainian National Constitution allows the Crimean Parliament to adopt its own regulations in the field of natural resource management, urban development, etc. Preliminary research shows that the Crimean region has been allowed to effectively exercise these rights over the years in contradiction to the Russian claim of the Crimea population being oppressed.
Is the population in the Crimean region subjected to systematic neglect and abuse by the Ukrainian central government? One cannot readily speak of systematic abuse as was the case of ethnic Albanians in Kosovo or in the case of South Sudan vis-à-vis the then northern region of Sudan. One could argue though perhaps that Ukraine’s political instability in recent months could gravely harm the interests, including security, of the Crimean population. Even if this was the case, the international legal community does not agree on the legitimacy of remedial secession on such a basis.
Therefore, is the Crimean Parliament vote to join the Russian Federation illegal? The answer here is no, albeit with the above clarifications and observations. Can the Crimean population legally exercise its right to external self-determination? The author is of the opinion that − on the basis of existing international case law − this question can neither be answered affirmatively or negatively.
Ideally, as the matter directly involves both the Ukraine and Russia, the International Court of Justice will be called upon to deliver a definitive answer on this complex and sensitive issue in the not-too-distant future.