Can Crimea Secede by Referendum?

by Chris Borgen

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.

http://opiniojuris.org/2014/03/06/can-crimea-secede-referendum/

22 Responses

  1. It will be easy to use dissolution of Yugoslavia as an example for instituting the independence of Crimea, and especially what the NATO/USA did with Serbian province of Kosovo.
    According to Constitution of Yugoslavia, the republics DID NOT have right to secede  (not to mention autonomous provinces Kosovo or Vojvodina for that matter), yet the force of NATO (USA+EU) made it happen. 
    The point is: Laws and Constitutions, and especially vague “international law” bend under the force. 

  2. Chris: yes, the ICJ did not rule on a right to secession!
    Yes, “self-determination” would be most relevant, but the 1970 Declaration on Principles of International Law expressly recognizes that a “people” can exercise that right in a number of ways, including “the free association or integration with an independent State or the emergence into any other political status freely determined by that people” — hardly a prohibition of secession as part of self-determination!
    Moreover, if Ukraine was denying a “people” their right to self-determination [not in the picture], action could “dismember or impair, totally or in part, the territorial integrity” of Ukraine, since the right of the State to remain in tact is only a right for a State that does not deny self-determination to a “people” (I have in mind the creation of the new State of Bangladesh).
    BUT, the critical issue would be who is the “people” in Crimea, Ukraine? They would appear to be Ukraine.  Are all of the people in Ukraine not Ukranian?  Are only some “Russian”?  In any event, there is no known denial of political participation to “Russians” in Ukraine.

  3. It may also be worth noting that state practice generally does not support attempts to secede which are primarily caused not by internal grievances but by influence of other countries (especially if force is involved) – such as Northern Cyprus, Transdnistria, Abkhazia and South Ossetia. Contrast with the secession of Bangladesh from Pakistan – despite India’s involvement, the suppression of Bangladesh by the government in Pakistan can be said to provide sufficient indication that denial of internal self-determination is the actual cause of the attempt to secede, and the outside influence is merely assisting in the execution of secession.

  4. Thank you Maya, and re: the first response here, Kosovo was rather more like Bangladesh, with crimes of genocide and crimes against humanity being perpetrated on a recognizable people.

  5. As for what constitutes a people for the purpose of self-determination, this concept seems to be quite relaxed. E.g. the African Court of Human and Peoples’ Rights held in the Gunme case that different colonial traditions in Northern Cameroon and Southern Cameroon were sufficient to create separate peoples in these two areas. One could also argue that even the ICJ in the infamous Kosovo advisory opinion did not question the fact that the declaration of independence was adopted by “the people of Kosovo”, even though they do not constitute a separate ethnic group. So it seems from the few available instances, that prolonged distinction in organising life may qualify a group as a people for the purpose of self-determination. Of course, only those who know more about the life and people in Crimea can answer if there are any such noticeable distinctions there (my gut feeling is that there very well may be).

  6. Article 73 of the Ukraine Constitution states:
    “Article 73. Alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum.”
     
     
     

  7. Jordan:

    My point is that there is no right to remedial secession under international law and that as a matter of practice, we can see that secession is disfavored.  I stand by both of those claims.  

    A supposed right to secession outside of the colonial context would have to be created either by treaty or by customary international law.

    No such treaty exists. The 1970 Declaration was a nonbinding General Assembly resolution.

    Is there a customary right to remedial secession? If so, where is the widespread ongoing state practice based on a sense of legal obligation? To the contrary, time and again we find great powers and small states speaking of the importance of territorial integrity as a cornerstone of the international system.

    Even where we do see new states coming into being, such as in the former Yugoslavia, including Kosovo, almost no state said these new countries came into existence by operation of a right to remedial secession.  (To the contrary, the Badinter Commission took pains not to say that and disfavored the arguments of entities that tried to claim such a right.)

    If widespread state practice supporting a right to remedial secession existed, then the ICJ would not have written the following in the Kosovo Advisory Opinion :

    Whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question. Similar differences existed regarding whether international law provides for a right of “remedial secession” and, if so, in what circumstances. There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of “remedial secession” were actually present in Kosovo.

    Based on this, there seems to be neither adequate state practice nor opinio juris for a right of remedial secession.

    My second point is that secession is highly disfavored by state practice. Of course, secessions happen, but the rules of the state system (including rules of recognition, international organization membership, and so on) are stacked against aspirant states that come into being by seceding. That doesn’t make secession illegal under international law, just politically disfavored by the members of the international system. Secession is probably less politically disfavored in some situations, but that does not mean it has become generally accepted as a right. (At least, I don’t think that it has.)

    As an aside, I should also note that even if the secession itself is not illegal under international law,  violations of international law might occur in relation to a secession,  such as a use of force by a third party state in violation of the UN Charter. 

    Chris

     

  8. PD Shaw: Thank you, I will take a look!

  9. Chris: the 1970 Dec. was a consensus resolution that took 25 years to come into existence and it provides legally relevant content for clarification of Charter precepts as well as opinio juris for CIL (see Nic. v. U.S., ICJ use of the 1970 Dec.).
    “Practice” need not be widespread, only “general” (Stat. of ICJ, art. 38) and acts and omissions can be practice.  The relevant practice may not be secessions but reactions to them by action and inaction of various states, etc.

  10. Chris, so in your view, is Pres. Obama correct in saying that the “Referendum” violates international law? There is no “right” to secede, but would you suggest it is a “violation”? 

  11. So you thing we can also apply this theory to the referendum proposed by Catalan Government in Catalonia to secede from Spain?

  12. Was the secession of the Southern States of the USA legal in International Law?

  13. I would just chime in with the Advisory Opinion of the Supreme Court of Canada in re Quebec with its effort to distinguish internal self-determination from external self-determination (cases of colonialism, foreign power occupation, or no meaningful participation in their governance).  It seems that both the US South and Crimea had meaningful opportunities to participate in their governance in their respective states.  Thus, the South had no right to secede (leaving aside the intertempores argument) as they even had extra weight in the US Consitutional structure through the 3/5ths rule).  I would find it perverse that a parliament that was changed overnight (i.e. by fiat from the external occupying force more than by organic change through election) right at the time of or after the Russian’s coming in would be considered to be a Parliament that is expressing the people’s right of self-determination through the demand to secede.  I leave to the side the domestic Ukrainian law.
    In the end the extralegal nature of these facts on the ground is a point – but the issues concern the international community as Aalands said and so there is a space for a wide range of reactions from acquiescence to resistance by other states of the community of nations.
    Best,
    Ben

  14. Whether the vote would be legal or illegal under either bodies of law, the secession would be illegal because it was essentially brought about by force, would it  not?

  15. Jordan: The 1970 resolution was to commemorate the 25th anniversary of the UN and restate its principles but, besides the fact that it was an anniversary resolution, it didn’t take 25 years “to come into existence.” It needs to be assessed as other nonbinding GA resolutions do: possibly as a evidence reflecting opinio juris  and/or as an indication of relevant state practice.

    On the specific issue of secession, the Declaration is not good evidence of opinio juris.  (I believe ICJ cited it for in Nicaragua for other propositions: use of force and nonintervention, but I may be wrong.) Since the Declaration, in their official pronouncements states have backed away from the remedial secession language as a matter of right.

    As for state practice, my read is that looking at secessionist conflicts since the end of World War II, there around three or four examples of secessions contested by the pre-existing states that were both successful “on the ground” and were also accepted and recognized by a significant portion of the international community: Bangladesh, Eritrea, and now possibly Kosovo and South Sudan. I only list Kosovo as a “maybe” because fewer than half of UN member states recognize it, it is not a member of the UN, etc.  (Although, in comparison to other examples, it is very successful, having secured recognition from most of he key states in its region, as well as the U.S. and others.) You could possibly add South Sudan as a “maybe,” although after the war, South Sudan’s separation was based on operation of the provisions of a peace agreement. 

    (In other cases, such as Senegal, Singapore, and the Czech Republic and Slovakia, separation was pursuant to separation agreements or operation of their domestic constitutions.  Moreover, the USSR capitulated on the secession of the Baltics and, as of September 6, 1991, no longer contested their departure, and the successor states of the USSR and those of Yugoslavia were formed due to dissolution of the pre-existing states, not secession.)

    By contrast, in that period there have been at least twenty (as yet) attempted secessions that have not been accepted by the international community: Nagorno-Karabakh (Azerbaijan); Republika Srpska (Bosnia Herzegovina); The Karen and Shan states (Burma); Tibet (China); Katanga (Congo); Turkish Federal Republic of Northern Cyprus (Cyprus); Abkhazia (Georgia); South Ossetia (Georgia); East Punjab (India); Kashmir (India); Kurdistan (Iraq/ Turkey); Anjouan (Islamic Republic of the Comoros); Gagauzia (Moldova); Transnistria (Moldova); Biafra (Nigeria); Bougainville (Papua New Guinea); Chechnya (Russian Federation); Somaliland (Somalia); Tamil Elam (Sri Lanka); and, Democratic Republic of Yemen (Yemen).

    (My lists are adapted from the lists in James Crawford, The Creation of States in International Law (2006), but with some updates and other changes based on my own take of the situations.)

    So, I would say state practice strongly disfavors secession as a solution. Once again, I am not saying it is illegal under international law, just that states rarely support it and thus there is neither the support in treaty law or in customary international law to view it as a remedy by right, but for in cases of decolonization.

    While of course I can see the pragmatic and humanitarian argument for remedial secession in cases of severe oppression.  However, I am trying to describe what international law is now, not what some may want it to be. 

    There is very little, if any, state practice to support remedial secession outside of the colonial context. Nor are there clear statements of opinio juris, even regarding cases of oppression.  The ICJ found the concept of remedial secession to be highly contested. To me, that doesn’t sound like customary international law has  formed (yet).

  16. Julian: The quotes I saw were of the President saying that the referendum would violate Ukraine’s constitution as well as international law.  The violation of the Ukrainian constitution is pretty clear, from what I understand. I think  the second part of the statement, about the referendum being a violation of international law is a tougher case to make, especially after the ICJ’s Kosovo Advisory Opinion.

    He also stated at various points that Russia’s actions violate international legal obligations to respect Ukraine’s sovereignty and territorial integrity.  I think he is correct on that issue.

  17. Although the idea of the referendum, plebiscite or “direct democracy” sounds  rhetorically reasonable, the historical reality is that it can only work when everyone votes.  Referendums primarily, have only engaged those who have had a vested interest in an issue. It often corrupts those who do not fully understand the implication of such issues, and excludes thosewho for many reasons choose not to register to vote; not the least of them being a belief that it is too hard to sift through all the information available to make good decisions on how to vote.

    At the turn of the 19th century, referendums and plebiscites were the common practice for both nation building and statecraft, and what we have learned since then, is that those who write referendums usually control the outcome of the vote.  During the UN decolonization era of the 50s and 60s, this understanding of referendums mandated UN oversight during the decolonization process.

    Additionally,  although I agree that self-determination and secession are two different legal structures, the case for creating separate ethnically-divided nations within states has a lot of historical precedence in the region.

  18. Thanks for the article, Chris!

    I’d disagree to your statement that it’s not a matter of International law. On the contrary, the secession of Crimea violates territorial integrity of Ukraine. And territorial integrity, in turn, is one of the basic principles of International law. To make a long story short, here’s why Crimean secession violates International law: acontrarioicl.com/2014/03/17/secession-of-crimea/

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