06 Mar Can Crimea Secede by Referendum?
As Julian mentioned, the Crimean parliament is attempting to achieve the secession of Crimea through the use of a parliamentary vote and a referendum. More legal rhetoric in the midst of political crisis. Back in 2007 and 2008, Russia, the U.S. and the EU used quasi-legal arguments to try to explain why one could support the independence of Kosovo, but not South Ossetia and Abkhazia, or vice versa. It looks like a new iteration of this debate is starting. According to CNN:
lawmakers in Crimea voted in favor of leaving the country for Russia and putting it to a regional vote in 10 days.
It’s an act that drew widespread condemnation, with Ukrainian interim Prime Minister Arseniy Yatsenyuk calling the effort to hold such a referendum “an illegitimate decision.”
“Crimea was, is and will be an integral part of Ukraine,” he said.
The legal issue here is really one of Ukrainian Constitutional law more than of international law, because, as it is generally understood, there is no right to secede under international law. Under international law, a secession is neither a right nor necessarily illegal. It is treated as a fact: a secession either was successful, it was not, or it is still being contested.
There is, however, a right to self-determination, which is understood to be, for communities that are not colonies and are within existing states, meaningful political participation and the pursuit of economic, social and cultural development under the auspices of that existing state, in this case Ukraine. This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination. Crimea is already an autonomous republic within Ukraine; more on that in a minute.
Nor does the International Court of Justice’s Advisory Opinion on the legality of Kosovo’s declaration of independence under international law recognize an international right of secession. It side-stepped the question of whether there is a right to secede under international law and framed the legal issue as one of domestic law. It was an advisory opinion that gave very little advice.
If the recent ICJ opinion does not provide much guidance, the tradition of state practice over the longer term does. The international community has not given much legal weight to referenda such as these. Back in the interwar period the Aaland Islands attempted to use a referendum to secede from Finland. In that case, an international commission of jurists brought in to assess the situation for the League of Nations found that there is no right of national groups to separate by the simple expression of a wish. And, particularly relevant today, the ability to choose secession by plebiscite must be granted by the state itself, that is, Ukraine. Otherwise, such a formulation would infringe upon the sovereign right of states. (See the Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations Off. J., Spec. Supp, No. 3, at 5-10 (1920)).
We have seen more recent examples of referenda, such as when Transnistria tried to use a plebiscite to claim independence from Moldova and possible unification with Russia. It received no support from the international community for that claim. (This tactical use of referenda seems to be used time and again by secessionist groups supported by Russia.)
It is important to keep in mind that the whole population of Ukraine has a right of self-determination, as well, and that includes the right not to have their country be torn asunder either by a local referendum and/or external military intervention.
The only place that could confer a right to Crimea to leave by referendum is the Ukrainian Constitution. As far as I can see, there is nothing there conferring the power to secede by referendum. Title X of the Ukrainian Constitution (revised link) concerns the Autonomous Republic of Crimea; there is no mention of secession by act of regional parliament or by local referendum.
Even the Constitution of the Autonomous Republic of Crimea defers to the Ukrainian Constitution. Article 1 of the Crimean Constitution states:
The Autonomous Republic of Crimea shall be an integral part of Ukraine and it shall solve, within the powers conferred upon it by the Constitution of Ukraine, any and all matters coming within its terms of reference.
The Autonomous Republic of Crimea shall also exercise any and all powers as may be delegated to it by Ukrainian laws pursuant to the Constitution of Ukraine.
By the way, as I understand it (and, again, I invite any readers with particular knowledge in this area to comment), the term “autonomous republic” had a specific meaning in the old Soviet constitutional law. Under the Soviet constitution, there were “union republics” and “autonomous republics.” Union republics had the highest form of sovereignty within the USSR. When the USSR dissolved, the Union republics such as Russia, Moldova, Georgia, Azerbaijan and Ukraine became new sovereign states. The autonomous republics did not have that level of sovereignty; they were subsidiary entities.
I note that Russia has within it its own autonomous regions and republics. Yet, I see nothing indicating that they believe those entities can voluntarily secede from Russia.
Words like “self-determination” are rhetorically persuasive when kept vague but they also have actual legal meaning. One needs to be careful about setting up unreasonable expectations by claiming certain results (such as secession) as a matter of right, when no such right exists.
Such use of legal rhetoric does not help resolve conflicts; it only makes some people more intransigent and the conflict more intractable.