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Home EJIL Analysis Crimea’s Declaration of Independence

Crimea’s Declaration of Independence

Published on March 18, 2014        Author: 

The referendum on Crimea’s secession from Ukraine and on the subsequently planned accession to the Russian Federation has produced the expected results. An overwhelming majority has voted against Crimea remaining part of the state of Ukraine. Already one day after the referendum, the Supreme National Council of Crimea has declared the independence of Crimea and requested other states to recognize it as an independent sovereign state. And today Russia and Crimea signed an agreement on Crimea’s accession to the Russian Federation. Crimean and Russian authorities seek to justify their actions under international law, especially by reference to the International Court of Justice’s advisory opinion on Kosovo. In a statement of March 11, 2014, the Supreme Council of Crimea proclaimed that it is acting “with regard to the charter of the United Nations and a whole range of other international documents and taking into consideration the confirmation of the status of Kosovo by the United Nations International Court of Justice on July, 22, 2010, which says that unilateral declaration of independence by a part of the country doesn’t violate any international norms.” (link to press report) How do these claims hold under international law?

In evaluating the significance of the ICJ’s advisory opinion to Crimea it is important to highlight that the opinion only had a very limited scope. It did not answer the question whether Kosovo had a right to secession under international law, it did not address the question whether there is a general entitlement to secession; nor did it answer the question of the legal consequences of the declaration of independence or whether Kosovo has become an independent state. Rather, the opinion is limited to an analysis of the legality of the declaration itself (I.C.J. Reports 2010, para. 51, 56).

The Kosovo opinion relies on a brief review of norms of international law, which – as the ICJ concludes – do not generally prohibit unilateral declarations of independence. The principle of territorial integrity only applies in the relations between states, but not in regard to internal secessionist movements. However, the ICJ mentions a situation in which unilateral declarations of independence can nevertheless be in violation of international law, namely where 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 (ius cogens)” (ibid. para. 81). The violation of international law then does not stem from the unilateral character of the declaration of independence, but from its reliance on the violation of a peremptory norm of international law.

In regard to Crimea, the declaration of independence would have been impossible without Russian troops backing up the steps towards secession. Only the fact that Ukrainian forces on Crimea have been locked in their posts and that the public infrastructure has been taken over by pro-Russian forces made it possible to hold the referendum on which the declaration of independence is based. It can therefore hardly be argued that the declaration would not rely on the use of force. According to the criteria elaborated in the ICJ’s advisory opinion, if that use of force was illegal, so was the declaration of independence.

A further question is whether Crimea has a substantive right to secession under international law. Crimean authorities refer to the UN Charter and rely on the principle of self-determination (Article 1 (2) UN Charter) which, as they argue, would assign them a right to secession. Such a claim is also not supported by international law. State practice is very reluctant to acknowledge a right to secession, since states fear that their own territorial integrity might be endangered by an empowerment of secessionist groups. Indicative for the traditional position on the right to self-determination is General Assembly Resolution 2625 (1970). After acknowledging the right to self-determination this resolution stresses that such acknowledgment may not “be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States” as long as those states internally respect the right to self-determination of peoples. The right to self-determination requires states to respect minority rights, but does not grant a sub-entity of states the right to freely chose to which state a territory shall belong. Self-determination is usually limited to internal measures, such as the right to be granted a certain status of autonomy within a state. Although one might certainly argue about the necessary degree of autonomy, it is important to highlight that Crimea already had the status of an autonomous republic under Ukraine’s constitution. In principle, the institutional arrangements for implementing the right to self-determination were in place.

The legal situation in regard to the self-determination of Crimea is therefore rather clear. But, as Nico Krisch has pointed out on this blog, the more formal, traditional norms of international law have come under pressure from what he calls liberal interventionism. In regard to self-determination, Western states have created such pressure, for example, when recognizing Kosovo as an independent state immediately after its declaration of independence in 2008. Those who argued for these exemptions referred to the history of internal conflict and the human rights violations that preceded Kosovo’s declaration of independence. A comparable history of conflict does not exist in Crimea, but since the concept of self-determination has been expanded in the past when it seemed opportune, it is not surprising that secessionist movements try to push the limits even more. Since Russia is powerful enough to pursue its interests anyway, it does not need an ultimately convincing legal justification. A justification that is at least not totally absurd, but somehow arguable, is already good enough for making a case in the international political sphere. In expanding the right to self-determination in regard to Kosovo, Western states bear their share of responsibility in enabling such arguments and in undermining international law.

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9 Responses

  1. zacarias

    Russia’s position in the instant case is contrary to its earlier position on the right of secession as reflected in its arguments in the ICJ during the Kosovo advisory proceedings.

    That position was probably made to Justify its position with respect to Georgia.

  2. Jordan

    Christian: I agree that human rights violations (and genocide and other crimes against humanity) are critical aspects of context that allow differentiation of Kosovo. Also important is the NATO authorization of “regional action” under UN art. 52 while the S.C. was veto-deadlocked and unable to control such action or authorize “enforcement action” under arts. 42 and 53.
    With respect to “pro-Russian forces” operating in Crimea, there are two questions raised: (1) were some or even most of the uniformed persons actually members of the Russian armed forces, and (2) was there “substantial involvement” by Russia with the take over by those “pro-Russian forces” who were not members of the Russian armed forces so as to allow recognition of attribution or imputation of non-state actor uses of force to Russia under the ICJ’s “substantial involvement” test [which some have mistakenly thought was an “effective control” test with respect to attribution for self-defense and use of force purposes as opposed to use of the effective control test for state responsibility for particular human rights or law of war violations}?

  3. The referendum of Crimea is not only a scoffing defiance to the norms of International Law, but also a blatant exposure of the ‘Putin Doctrine’ (http://www.foreignaffairs.com/articles/139049/leon-aron/the-putin-doctrine ).

    After the National Council’s declaration of independence, what would be the legal status of those stranded Ukrainian soldiers in Crimea, entwined by Russian troops?

    What would be the status of those populace of Crimea (mostly Tatar and ethnic Ukrainian) who restrained themselves from casting votes in the referendum?

  4. Jordan

    Consider also the occupation by Russian troops and 1949 GC, art. 47:
    “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”
    Assuming that an armed conflict of an international character has taken place or, more likely, a case “of partial … occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance,” common art. 2 of the 1949 Geneva Conventions would be triggered.

  5. Jordan

    IV Commentary on GC at 275 (ICRC 1958) adds: “occupation …deprives the occupied Power of neither its statehood nor its sovereignty…. the Occupying Power cannot therefore annex the occupied territory…. A decision on that point can only be reached in the peace treaty. That is a universally recognized rule which is endorsed by jurists and confirmed by numerous rulings of international and national courts.”

  6. Aldo Zammit Borda

    While it has been reported that President Putin today, rather cynically, paid lip service to international law, in this case, the Russian Federation has escalated from recognition, as was the case with Abhkazia and South Ossetia, to annexation of Crimea. One may not help but wonder where Russia will decide to draw the line. This is certainly a stark lesson in realpolitik for anyone who may have bought into the notion of the last decade or so relating to ending impunity. At this stage, it would appear that only a few minor remonstrations, such as targeted sanctions, are being imposed.

    While I understand the reasons, it is difficult not to comment on how conspicuous in its absence the United Nations Security Council has been. That same body onto which, under Article 24(1) of the UN Charter, all UN Member States confer primary responsibility for the maintenance of international peace and security. But which, in this case, for reasons which are clear, appears to be able only to watch on helplessly.

  7. heiko

    Is a right to secession really necessary? The Ukraine must not consent anyway. Serbia and the Kosovo… Why isnt the fact of the secession be enough for the creation of a new state? When a state breaks into two parts, why is one part better that the other? I dont buy the force argument as well. The war in Afghanistan is called a non-international conflict! The election seems to have been fair enough to say that all did happen with the will of the people. That matters most. To have foreign friends is common.

  8. A very good piece, importantly making the point that the West’s support for and recognition of Kosovo’s claim to independence is coming back to bite them in this instance. Nico’s referenced piece explains the dynamic well.

  9. Getahun

    Christian,
    I concur with your analysis. The situation of Crimea proves that the insignificance of rule of law in international politics. As some have already said, it has been proven time and again that it is not law but power politics that has effectively been shaping and reshaping the face and fate of our global system. And once again, at the dawn of 21st C, it is evidently seen that the international community is still unable to subject the behavior of those powerful states to elementary principles of international law. But when it comes to weak states, the rule seems to have been always biting. What else can assure us than this that our global system is shuttered by the absurdity of power politics and impotence of rule of law!