Remedial Peoplehood: Russia’s New Theory on Self-Determination in International Law and its Ramifications beyond Ukraine

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The evolution of samoopredelenie or self-determination dates back to the early 20th century when these terms were used by the Russian Bolsheviks and the West respectively to advance ideological and political objectives. Now once again the concept of self-determination and its subject, i.e., people, have been variously invoked to justify support for the people of Ukraine writ large, and more narrowly for the “Donetsk and Luhansk Peoples’ Republics” of the Donbas region. Following the crystallisation of self-determination as a legal right and the subsequent process of decolonisation, certain groups have been designated by outsiders — not by the peoples themselves — as peoples on different territorial or ethnic criteria in the absence of a standard, universally applicable definition for the term people. Modern state practice indicates that peoplehood is still interpreted as the whole people of a territorial unit for the purpose of self-determination. But, in Donbas, Russia follows the so-called remedial approach of peoplehood, bestowing peoplehood status to allow a populace to foster a right to external self-determination — if the minority has been oppressed by its host state. In contrast, the international community of states has adopted the majoritarian perspective or whole people formula, which holds prevalent standing in legal scholarship, considering all the inhabitants of Ukraine as an undivided self for recognition as a self-determination unit. Although conditional secession is stipulated in Paragraph 7 of the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, apart from the Canadian Supreme Court decision on the Quebec referendum, no international court has ever recognized the remedial secession and external self-determination of a sub-state population. The Russian Constitutional Court in Chechnya also rejected remedial secession, at least for Chechnya. Russia’s position now that remedial secession is permissible to prevent “genocide” has become the inverse of that judgement. It is noteworthy that Russia has presented no evidence of “genocide” occurring in Ukraine. The safeguard clause (Paragraph 7) of the Declaration does not justify the prohibited use of force and acquisition and annexation of territory by force or through aggression. A deeper understanding of the Russia-Ukraine situation thus concerns the future of self-determination in international law.

The active Russian moves on the ground against Ukraine began with the annexation of Crimea in 2014, including a referendum held there under Russian auspices. Voting was running for four days in expedited so-called referendums, in east and southeastern Ukraine (Luhansk, Donetsk, Zaporizhzhia, and the major city of Kherson) controlled by Russia and pro-Russians forces, on the question of becoming part of Russia. The results were predictable. The Russian Federation formally annexed those regions to Russia on the basis of the dubious referendums, on 30 September 2022. Four days later, the lower house of Russia’s parliament unanimously approved the annexation of four occupied Ukrainian territories into Russia. No objection is expected from either the Duma or the upper house, the Federation Council.

Besides invoking minority rights for the inhabitants of Crimea, Donetsk, Luhansk, Zaporizhzhia, and Kherson, the Russian side has also made statements denying the legitimate sovereignty of Ukraine as a whole. The Russian concept of self-determination for these regions suggests a path forward for other territories claiming self-determination and perhaps other unresolved cases of self-determination as well. It can be argued that the Russian moves may effectively steer international law in a new direction. Thus this move impacts upon the international law concept of self-determination in general, and the implications for national groupings in particular if Russia successfully detaches the Russian-speaking areas of Crimea, Donetsk, Luhansk, Zaporizhzhia, and Kherson from Ukraine. This raises the prospects for irredentist national groups above the level of a mere chimera. Unlike the existing state of the law of peoples that largely ignores irredentist national groups or multi-territorial peoples inhabiting a contiguous territory fragmented across different sovereign states barring them from implementing sovereign self-determination while still proclaiming a right to self-determination, the Russian turn in the law of self-determination could help these people advance their right to self-determination. The argument of such peoples for self-determination is advantaged within the so-called newly advanced Russian framework of law. In this approach, it could be argued that self-determination is no longer a territorial entitlement, and the contradiction between uti possidetis and self-determination is resolved. But it is not that easy. This framework will not come into existence without serious breaches of Art. 2(4) and Art. 2(7) of the UN Charter. And if so, it would be a return to the misuse and abuse of classical ‘just war’ theories, inflected this time with self-determination rhetoric.

And finally, challenging the sovereignty of states could potentially lead to an increase in territorial claims based on historical title, especially in the Middle East. Turkey’s occupation of Rojava (Western Kurdistan in Syria) is worth mentioning as an example. The Russian challenge could spur various national groups and incite the re-emergence of historical conflicts, rooted in language, race, and religion. The international reaction to the referendums and annexation was foreseeable but the sanctions already in-place on the Russian state for the annexation of Crimea tell us these measures are not enough. Also, a resolution at the UN Security Council with the purpose of condemning the “referendums” will get nowhere. The international community may once again rely on the UN General Assembly to denounce the seizure and annexation of territory using force and aggression.  

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Andrei Richter says

October 7, 2022

It is interesting that the applications for joining Russia from Mariupol and Kherson said, "the people (narod) of Kherson region", "the people of Zaporozhye". What are these new nations, as narod in this context means "nation"? (rhetorical)

Matteo Vaccaro-Incisa says

October 8, 2022

Thank you, Loqman, for this review. Your closing remark about the chaos that accepting the ‘Russian challenge’ would ensue on international relations made me think to a comment Marko Milanovic kindly shared with me regarding an early draft of an article I wrote on “Crimea's Secession … as an Instance of North(-West) v. South(-East) Divide in the Understanding of International Law” (then published in 2017 by Santa Clara JIL).
There, moving from a criticism to the Badinter’s application ‘sic et simpliciter’ of the ‘uti possidetis’ principle in non-colonial contexts, I hypothesized, in sum, that post-Charter intra-federation transfers of territory carried out in breach of self-determination should hardly assume ipso facto relevance in international law by the time the federation ceases to exist, but they should be confirmed by referendum (in particular, in connection with a context of ‘reunification’ with the original intra-federation entity). In that case, the focus was, of course, the 1954 intra-USSR transfer of Crimea (and the argument much wider, and I anyway concluded that the 2014 events were hardly legal, but that’s not the point now).
Marko’s comment there was that the theoretical seeds that I proposed were “…a recipe for chaos in international relations and for the dismemberment of weaker states by their more powerful neighbors.”
In that respect, and from my modest perspective, I did not agree (and I still do not), as the ‘pre’ or ‘post’ Charter threshold (i.e., when self-determination was set on the Charter’s stone – even though, arguably with a different meaning than today’s understanding by many), plus the context of the dismemberment of a federal entity, much reduce the coverage of what was, for me, an attempt to rationalize the weak outcome of the GA vote on Ukraine, back in 2014 (by contrast to, e.g., the quasi-unanimity of Kuwait/1990). Also, testing the effect of this ‘theory’ against comparable situations (e.g., Abkhazia, Transnistria, or even some aspects of former Yugoslavia) the result was always negative, hence I couldn’t really agree with the ‘chaos-unleashing’ criticism (chaos is what we had, and have).
To be clear, and prevent any misunderstanding, my comment and position have nothing to do with Eastern Ukraine: the events unfolding there are illegal since 2014, and what we’ve been witnessing for the past 7+ months simply a barbarity.

Heiko Recktenwald says

October 9, 2022

Lets not forget that the Euromajdan was a revolution and that the possession of Kiew was nothing. Why should other people in the Donbass or whereever need any justification to say No !! ?

See also the civil war in Odessa. The Ukraine was broken into pieces.

The genocide argument was never necessary. They were free to say No and no side was better than the other. This was the idea of Minsk. The Swiss model.

Heiko Recktenwald says

October 9, 2022

Minsk was the contrary of "one state, one people, one language, those who dont jump are Russians". I cant understand why my Europe of the democratic society of Art. 10 of the Convention does support such warriors and I ask myself how this is compatible with the once famous European Guidelines on the recognition of new states in the East.

Sze Hong Lam says

October 30, 2022

Perhaps a distinction could be drawn between secession resulting in an independent state and secession leading to the annexation of a territory by a third state? Between the two cases, there is a fundamental but important difference. In the former case, the minority of a region forms one "people" instead of part of the larger people inhabited in a third state. One could well argue that even if the remedial secession is to be recognized, it does not extend to a right to rejoin another state given that the minority should form one separate people and hence constitute one self-determination unit in the form of a state. While this suggestion might be useful in deterring "remedial peoplehood" from being utilized to justify territorial annexation by irredentist states, I acknowledge that it might pose problems to "people" who were minorities in separate neighboring states (such as the Kurds or the Polish people before first world war).