Does It Really Violate International Law for Crimea to Hold a Referendum on Secession?

by Julian Ku

I am looking forward to the contributions to our “insta-symposium” on Ukraine and international law. I don’t have a tremendous amount to add at this point, except to point out that President Obama has been aggressive about accusing Russia of violating international law and about the importance of international law generally.  This has gone beyond merely charging Russia with violation of the prohibitions on aggression and the use of force contained in the U.N. Charter.  In his statement today, he took aim at the proposed referendum in Crimea on joining Russia:

He also said that a proposed referendum in Ukraine’s Crimea region — one that, as proposed by proposed by pro-Russian Crimean lawmakers, would ask residents whether Crimea should be part of Ukraine or Russia — would “violate the Ukrainian constitution and violate international law.”

Any discussion about a referendum must include Ukraine’s legitimate government, Obama said. Washington considers Ukraine’s legitimate government to be the one installed by Parliament after last month’s ouster of President Viktor Yanukovych following months of protests.

Putting aside the Ukrainian law question, it is interesting that the U.S. government is specifically condemning the proposed referendum as a violation of international law.  Why exactly would the mere referendum (as opposed to the act of secession) violate international law?

I look forward to the views of our contributors and my fellow co-bloggers on this point, but on my first reading, the claim that the referendum would violate international law is undercut by the ICJ’s Advisory Opinion on Kosovo’s Declaration of Independence.  In that opinion, the ICJ found (among other things) that general international law does not prohibit unilateral declarations of independence. I don’t see how the proposed referendum is really any different from a unilateral declaration of independence, at least from the perspective of international law.  The authors of the “unilateral” declaration of independence did not consult Serbian authorities (much less get its consent). Like the declaration of independence, the referendum does not by itself “secede” Crimea from Ukraine under international law.  And unlike the declaration of independence, the referendum could find support (if other conditions are met) in the law of self-determination.

I am personally sympathetic to the Ukrainian government here. But I am not sure President Obama is right about this legal point, and even if he is, I am not sure the U.S. ought to be committing itself to the position that this referendum is illegal.   If there is a deal to be made here (as Henry Kissinger recommends here), this statement seems to make it harder to get to that deal.

I have one final thought on why this statement might make sense. There is one country who is probably more opposed to a referendum on secession than the U.S: that would be Russia, which can’t exactly be ready to endorse this possibility for Chechnya or other restive Russian regions. Nor are the Chinese going to be excited by this referendum (think what a referendum in Tibet or Xinjiang would look like).  The President may be counting on the Russians to put a stop to the referendum, and maybe this statement would help them do that.  I hope that is the strategy, anyway.

http://opiniojuris.org/2014/03/06/really-violate-international-law-crimea-hold-referendum-secession/

10 Responses

  1. I think the answer may depend in part upon whether who is allowed to vote in the referendum and how it is conducted constitute discrimination against non-Russian Ukranians.

  2. Julian: that’s an interesting point about a mere referendum, but perhaps he was focusing on a possible attempt at secession.  A given “people” have a right to self-determination, but who are the “people” in Crimea? Are they not Ukranian?  Russian people seeking to expand the Russian empire? Perhaps Obama has the CSA during our Civil War in mind and a violation of Ukranian self-determination if Russians who happen to live in Ukraine attempt to impose a secession on the Ukrainian people. Or perhaps he has knowledge that a referendum is really being pushed by Russia and that it is an unlawful intervention by Russia in the internal affairs of Ukraine.
     

  3. I agree with the legal analysis. Mere declaration of secession would seem not to violate international law in light of the ICJ Kosovo Opinion.
    But the question really shouldn’t be does the referendum violate international law, but who is alleged to have violated international law through the referendum. I can’t seem to access the orginal speech, but other reports indicate that the full phrase Obama used – at least on one occasion - was that “The proposed referendum on the future of Crimea would violate the constitution and violate international law”. This does not indicate who would be in violation.
    It appears open on this that the allegation the US may make is that Russia is in violation of the principle of non-intervention in facilitating or working with the Crimean separatists. As you note above, there is certainly a trend of referenda in similar purported secessions.
    That obviously begs questions, though, as to whether such an allegation could be supported and whether it could – as a matter of law – rise to the level of intervention.

  4. Very interesting reading covering a real time international crisis. It seems that there might be another legal issue that was not yet addressed about the status of the 1954 provision of the land gift by the Soviet Union of the Crimean territory to Ukraine. Can such a gift be revoked?

  5. Compared to NATO’s bombing of Serbia, the alleged Russian take-over of Crimea has been entirely peaceful so I’m not sure where the “illegality” is. AFAIK, Russia already had a perfectly legal military presence in and around Crimea (where its Black Sea fleet is based), so it’s questionable whether they had any need to bring in new troops given that they haven’t faced any armed opposition. As for the referendum, it seems more legal than a mere declaration as in the case of Kosovo. Bottom line, USA has become entangled in its own web of inconsistencies and it’s now paying the price for its reckless handling of the Kosovo issue. However, to be perfectly honest, I don’t think that USA is willing to draw any lessons from this just yet. Such a moment of epiphany will have to wait a few more decades down the road, I’m afraid…

  6. Two very intersting  opinions from Swit and C.B. Finally someone is able to realize what is going on there in Crimea. It is exactly the 1954 gift of Nikita Khrushchov to the Ukranian Local Government  as part of his strategy for “internationalism” and solidarity. There in Crimea has always been a predominantly Russian population after Ekaterina the Great has taken it over from the indigenous Tatars. Then in 1994 during the collapse of the Soviet Union the question about Crimea remained unsolved as Russians has problems of their own to settle. The latter made people of Crimea, predominantly of Russian origin, feel betrayed by Russia. And now, exactly now they feel it is a UNIQUE chance to correct the mistake. As for whether a referendum violates international law, Obama showed himself quite unprepared- the International law makes no provision for illegality of a referendum. On the contrary, it envisages that people have the right of self-determination. Illegal however it might be according to the Contry’s Constitution. As for alleged aggression of Russia inside Crimea, this is an absolute propaganda on the part of all Media from the times of the Cold War. As mentioned by someone above, Russia has a perfectly legal military bases in Crimea, Russan Navy and Ground Troops, and what they are doing inside the bases – training, exercises etc, is  their right. Bases just like US has its military bases in Okinawa, Japan, and many other parts of the world.

  7. Response… Resposta …Crimeia é RUSSIA!!!

  8. Response…thanks Rossi. So now in order to begin thinking about the revocation of a land gift one must gain factual insight as to the terms of the said gift contract. Was the gift conditional in any way on the maintenance of a status quo re use of military installations or worse, maintenance – express or implied – of Russian cultural linkages such as, for example, continued hunhindered Russian language usage within Crimea. Furthermore, similar case studies within international law about such land gifts would be most helpfull. Anyone?

  9. Allow me some history facts: in February 1954 a celebration took place commemorating 300 year anniversary of the so called Pereyaslavskiy Council, which was considered a unification of what is nowadays called Ukraine , partially, (the then Getman) and the Russian Emprire ( 1864). It is interesting to note here that it is the Getman rulers who asked the then Russian Emperor to become his subjects.  On its turn this has had its religious roots, but will stop here.
    By initiative of Nikita Khrushchov during the very same celebration, Crimea was transferred from the then Russian Soviet Socialist Republic (RuSSR) into the hands of the Ukrainian Soviet Socialist Republic (UkSSR), quote; ” taking into consideration the aggregation of economy,territorial proximity and the close trade and cultural connections between the Crimean county and the Ukrainian SSR.” unquote. Nikita Khrushchov himself was a long-time Secretary of the UkSSR and a certain amount of sentiment is also not excluded, keeping in mind his expansive behaviour during international public appearances…
    It is interesting to point out to one more interesting fact: in May 1992 Crimea declares state independency ( declares also a name- Rupublic of Crimea). Same month the first own constitution was adopted. March 1995 Ukraine declares it invalid. Since 1998 on Crimea has a new constitution and  is back on the status of Autonomus Republic of Crimea within Ukraine.

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  1. […] con fundamento solamente en el derecho internacional, es inexacto decir que el referendo es ilegal por sí solo, ya que, como se dijo, el derecho internacional no autoriza ni prohíbe las declaraciones […]