On 16 March 2014, Crimea held a referendum on its future legal status. Reportedly, the choice to join Russia was supported by an overwhelming 95.5 per cent of all votes cast, with the turnout of 83 per cent. A day earlier, Russia vetoed a draft Security Council resolution which sought to declare the referendum as ‘having no legal validity’ and urge the international community not to recognise its results. The draft resolution was otherwise supported by 13 members of the Security Council, with China abstaining. On 17 March 2014, the Crimean parliament declared independence and applied to join Russia. This contribution explains that while the referendum itself was not illegal in international law, the shift of territorial sovereignty would be illegal. Moreover, in the legal circumstances underlying the situation in Crimea, even the declaration of independence violated international law. As a result, the obligation to withhold recognition of the effective situation is applicable under general international law. No Chapter VII Resolution is required. This is not because international law would see territorial integrity of states as an absolute norm, but because the effective situation was created by Russia’s use or threat of force. Although parallels have been drawn to Kosovo (see the discussion in Christian Marxsen’s post) and even Scotland, in terms of international law Northern Cyprus would be a more accurate comparison.
Secession and neutrality of international law
Groups seeking independence usually present self-determination as an absolute entitlement. Conversely, states countering secession usually present territorial integrity as an absolute entitlement of states. Neither camp is right. As follows from the General Assembly’s Declaration on Principles of International Law (GA Res 2625), the Quebec case (Supreme Court of Canada) and partly also from the Kosovo Advisory Opinion (ICJ), international law is actually neutral on the question of unilateral secession. This means that unilateral secession is neither prohibited nor an entitlement. Furthermore, for the purposes of international law, it does not matter whether or not secession is explicitly prohibited under domestic law. As noted by the Supreme Court of Canada in the Quebec case, an entity may declare independence extra-constitutionally and yet nevertheless become independent if other states are willing to recognise it (the Quebec case, para 155). This further confirms that unilateral secession unto itself does not trigger an obligation to withhold recognition. [I explain this further here].Yet states are very rarely willing to grant recognition on a widespread basis to entities seeking independence unilaterally. By holding a referendum and declaring independence, such an entity in most circumstances does something that remains legally ineffective, yet not internationally wrongful. The burden of changing the territorial status quo lies on the secession-seeking entity and this exercise is very rarely successful if the parent state does not agree. However, a declaration of independence may be given effectiveness through foreign military assistance. This is where neutrality of international law ends. International law is neutral only with respect to a declaration’s unilateral character, but not in general, where territorial illegality is attached to the situation.
When are declarations of independence illegal?
Territorial illegality arises under a serious breach of certain fundamental norms of international law, in particular jus cogens. This was confirmed even by the ICJ in the otherwise very narrow Kosovo Advisory Opinion. To quote the Court:
“[T]he 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).” (The Kosovo Advisory Opinion, para 81).
This pronouncement of the ICJ is highly significant. The Court was otherwise heavily criticised for establishing a formalistic distinction between issuing a declaration of independence and creating a state. But here it affirmed that under some circumstances even a declaration itself may be illegal – where it tries to consolidate a situation created in violation of jus cogens. This doctrine is largely based on the practice developed with regard to Turkey’s forceful creation of Northern Cyprus, declarations of independence of Southern Rhodesia, four South African Homelands, and South Africa’s illegal presence in Namibia. There are some even older potentially relevant examples, such as Japan’s creation of Manchukuo. The territorial illegality in these circumstances was not created by the unilateral character of declarations of independence, i.e. without approval of parent states, but by the fact that these entities intended to become states as a result of illegal use of force or in pursuance of apartheid. It is true that several resolutions of UN organs called for non-recognition in these instances, but these resolutions were generally not legally binding. So, for the most part, the duty of non-recognition did not draw normative force from the Security Council’s Chapter VII powers. The duty of non-recognition rather applied under general international law. Given the norms involved, the following doctrine applies: where declaration of independence is issued in violation of jus cogens, it is illegal and other states have a duty to withhold recognition. This has been confirmed by Articles 40 and 41 of ILC Articles on State Responsibility.
The effects of independence referendums
In the Western Sahara Advisory Opinion, the ICJ confirmed that save for exceptional circumstances, any change of the legal status requires a free expression of the will of the people. But outside of colonialism, a referendum is only a necessary, not a sufficient requirement when a change of the legal status of a territory is sought. In the Quebec case, the Supreme Court of Canada reasoned that a decision in favour of secession, at best, creates an obligation on both sides to negotiate the future legal status of the territory (The Quebec case, para 91). This is still not an entitlement to secession and there is no pre-determined outcome. The central government does not enter into such negotiations with an obligation to determine the technicalities of secession. Negotiations could also lead to a new internal status of the territory, and a higher level of autonomy and self-government. As I explain elsewhere, there is a clear commitment of the UK government to accept the outcome of the independence referendum in Scotland. But this commitment goes beyond what is required by international law and Scotland does not have any implications for Crimea. In short, principles of democratic decision making do not create a right to independence.
The legal framework applied to Crimea
The general neutrality of international law means that the people of Crimea, in principle, are not precluded from holding a referendum, and even declaring independence and/or willingness to integrate with Russia. But international law does not give them a right to secession from Ukraine and/or integration with Russia. Not even the will of the people expressed at the referendum, however democratically and overwhelmingly, changes this position. International law remains neutral on this issue. In the absence of widespread international recognition, the Crimean intention would remain ineffective without Russia’s use or threat of force. For convincing arguments that Russia’s actions constitute aggression against Ukraine see here, here, and here. It is true that some Russian military presence in Crimea is legal under the Black Sea Fleet Status of Forces Agreement. But as has been demonstrated by, inter alia, Aurel Sari, current Russian activities have overstepped the boundaries of that arrangement. And even if the actual use of force were still contested, Russian activities constitute at least a threat of force, which is likewise prohibited by Article 2(4), UN Charter. This is where the neutrality of international law on declarations of independence is over. In the sense of paragraph 81, Kosovo Advisory Opinion, we are no longer talking about a unilateral declaration of independence but an attempt at secession in violation of jus cogens. This circumstance triggers Article 41, ILC Articles on State Responsibility. Foreign states are under obligation to withhold recognition. The obligation does not apply because Ukraine’s constitution would not allow secession or because there is no political approval from Kiev. It applies because Russia created an illegal territorial situation by use or threat of force. In other words, Russia created a situation legally comparable to Northern Cyprus, albeit integration rather than independence is sought here.
How is this different from Kosovo?
In 1999, NATO illegally used force against the Federal Republic of Yugoslavia. In the same year, the Security Council adopted the legally-binding Resolution 1244 which created a regime of international territorial administration for Kosovo and established its governance in separation from Yugoslavia and Serbia. As I explain elsewhere, I am critical of the ICJ reasoning (though not necessarily conclusion) on why the declaration of independence of Kosovo did not violate Resolution 1244. But as far as general international law is concerned, the above quoted paragraph 81 of the Advisory Opinion at least implicitly confirms that Kosovo’s declaration of independence was not issued in violation of a peremptory norm. This can only mean that in the ICJ’s view, the declaration of independence did not follow from the 1999 use of force, but rather from the subsequent legal regime established by Resolution 1244. The Resolution thus interrupts the link between the illegal use of force in 1999 and the declaration of independence in 2008. The legal situation in Crimea is different and the change of legal status would follow directly from Russia’s (military) activities.
International law is neutral on the question of unilateral secession. But the problem in Crimea is not that secession from Ukraine was unilateral. The problem is that it was achieved by Russia’s use or at least threat of force. International law prohibits any change of legal status of a territory in violation of a peremptory norm. This is what makes declarations of independence illegal. Pursuant to Article 41 of ILC Articles on State Responsibility, foreign states are under obligation to withhold recognition. This obligation exists under general international law; no Security Council resolution is needed. Although it was integration with Russia rather than independence that was sought, the territorial illegality is reminiscent of that in Northern Cyprus and does not follow the Kosovo precedent, let alone Scotland.