Ukraine Insta-Symposium: Crimea, Ukraine and Russia: Self-Determination, Intervention and International Law

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law and Professor of International Law and Human Rights at the University of Nottingham.]

Our responses to what has been happening in Ukraine and the reactions of various governments, may depend on how we view the politics of the region and the moral claims being made. The rule of law is also of direct relevance, as ‘[we] believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not.’ These words are those of President Putin, written a few months ago in order to prevent the US, UK and other governments from intervening in Syria. International law is crucial to the situation in the Ukraine. It is of particular relevance to the right of self-determination of the people of Crimea and whether Russia can lawfully intervene on the territory of Ukraine.

The right of self-determination, as enshrined in the UN Charter and international human rights treaties, enables a people to determine for themselves their political, economic, social and cultural status. It has been applied in recent years in the former Yugoslavia, East Timor and South Sudan.  It is certainly arguable that the people in the Crimea have a distinct identity and territory, created over centuries and fostered by decisions of the USSR, Russia and Ukraine. This includes its status as an autonomous region within the state of Ukraine and by specific agreements about it between Russia and Ukraine.  It is not unlawful for it to have a referendum and declare itself independent (or that it wishes to merge with Russia), as this was allowed by the International Court of Justice in its (poorly reasoned) advisory opinion on the declaration of independence by Kosovo.

However, such a declaration of independence or merging is not effective in international law by itself. There are two key factors that are relevant: the actions of the state within whose borders the people live; and the responses of the international community. In relation to the first factor, if that state is oppressing the people, discriminating against them, violating their human rights and not allowing them freely to be involved in the politics and internal affairs of the state (i.e. to exercise their internal self-determination), as was probably the situation in Kosovo, then international law allows them a range of possible actions, including independence and merging with another state.

If the people are able freely to participate in governance and are not being oppressed as a group, then these actions of secession are not lawful. This was made clear by the Canadian Supreme Court in its advisory opinion in the secession of Quebec. That Court‘s view was clear: the people of Quebec were not denied meaningful access to government to pursue their political, economic, cultural and social development and so the people  of Quebec do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally. They went further to make clear that the referendum result by itself would have no legal effect on its own without further negotiation with the people of the rest of Canada (this is also of relevance to the people of Scotland as they vote in their referendum). The second factor of the responses of the international community can be significant in terms of the recognition (or not) of the entity as a state. Indeed, Russia has not recognised Kosovo as a state.

The situation in Ukraine is such that the new government is just starting to be in a position to govern. It is trying to restore law and order. It has taken no major military or other oppressive actions against the people of Crimea (or in other areas of Ukraine). There are at this time no clear actions by it that would be sufficient to justify under international law any independence or merger with another state by the people of Crimea.  Thus there can be no international legal effect of any independence or merger declaration that might arise from a referendum.

The right of self-determination does not of itself give rise to a legal right for a state to intervene in the territory of another state, whether directly or through private actors. Where a people are being oppressed and force is being used against them by their own state, it is, I would argue, possible for them to seek and obtain military assistance of a defensive kind from another state. This is preferably through a resolution of the UN, as collective action by a number of states or as part of a self-defence agreement. However, a unilateral military action where there is no such oppression or force is unlawful. This was made clear by an independent fact-finding commission in their report on international law in relation to the military intervention by Russia in South Ossetia and Abkhazia in Georgia in 2008, which they considered to be generally contrary to international law.

If Russia, and all other states, are to comply with international law then they must first allow the new Ukrainian government (whether or not they are seen as the legitimate government) to resolve the situation in Crimea and ensure that the people of Crimea are allowed internal self-determination. Only if that does not occur then can other possibilities, such as secession and merging with Russia, be possible lawful responses. In any event, that decision is one for all the people of Crimea, and not just for those who are of Russian nationality or heritage (or there only for military purposes), and should not be subject to military or other pressure by any other state. After all, if international peace and security is to be maintained, it must be according to international law, otherwise we begin ‘sliding into chaos’.

http://opiniojuris.org/2014/03/10/ukraine-insta-symposium-crimea-ukraine-russia-self-determination-intervention-international-law/

18 Responses

  1. Robert: I suspect that the people in Crimea that Russia wishes to vote for secession might, as media report, somehow be “Russian.”  But is this correct?  Are they ethnic “Russian,” dual national “Russian,” Ukrainian?  Is there a Crimean “people”?  Self-determination is a right of a given “people” — who are the relevant “people” here?
    With regard to secession, surely Canada does not rule the world.  With due respect for the Canadian decision, self-determination is based in Arts. 1 and 55 of the U.N. Charter, Arts. 1 of the ICCPR and the ICESCR, and CIL.  The 1970 Dec. on Principles of Int’l Law contains no express restraint on “the free association or integration with an independent State or the emergence into any other political status freely determinate by a people.”
    But again, who are the “people” who are entitled to the relatively free right of self-determination? 

  2. sorry, can’t type well — it is, of course, “freely determined by a people”

  3. Peter Baker of the NY Times had a good article on this on 8 March, which I encourage people to read if they are interested in the subject:
    http://www.nytimes.com/2014/03/09/world/europe/crimea-crisis-revives-issue-of-secessions-legitimacy.html?hpw&rref=world&_r=0

  4. Non liquet: Baker does not resolve the issue regarding who are the “people” in this instance.  And Baker does not recognize how unique Kosovo was (e.g., a regional organization’s authorization for use of “regional action” re: Art. 52 of the UN Charter while the S.C. was veto-deadlocked and unable to control or authorize “enforcement action,” background of genocide, other crimes against humanity, and war crimes against ethnic group, etc.).

  5. Jordan, I would suspect “the people” in this case is defined as the people of Crimea as a whole.
    As the article is dealing with the legalilty of self-determination in a situation where a minority group (in this situation the mostly Russian area of Crimea) is being oppressed.  As pointed out in the article, this group is not being oppressed, and Russia had no legal basis to send it’s troops into the region.

  6. How would you respond to the claim that Crimea is not anymore bound by the Constitution, based on the assumption that the interim government broke constitutional law by forcefully ousting Yanukovich from power?
    Is there a constitutional crisis in the Ukraine? And if so, why hasn’t the Ukrainian constitutional court raised its voice?

  7. Neither Robert McCorquodale nor Greg Fox in today’s posts appear to mention the Crimean Tatars, whose homeland Crimea is, and who numbered 14% of the peninsula’s population at the last census. They are now probably at least 17%, with a higher percentage of Crimean Tatar children in schools. They are well organised, and the first disturbances several days ago were between Crimean Tatars supporting the Maidan and ethnic Russians.
     The Crimean Tatars have a long-standing claim for recognition as the indigenous people in Crimea, and have campaigned for many years for Ukraine to ratify the ILO Convention 169 of 1989. They are active in UK and Council of Europe mechanisms. As is well known they have a very large diaspora in Turkey and elsewhere since the Khanate of Crimea was conquered by Catherine II and Prince Potyomkin in the 18th century (Erdogan has recently promised to protect their interests), and in August 1944 they suffered mass overnight deportation to Uzbekistan, killing half their number; and at least 50% of Crimean Tatars are still unable to return from Uzbekistan.  This “genocide” is vividly present in the minds of living Crimean Tatars.
     It is in my view incorrect to speak of a “Crimean people” with a right to self-determination while excluding the Crimean Tatars.
     In any event, many of the Russians living in Crimea are the families of present or former service personnel present on the peninsula since World War II, and no-one seriously disputes their right to be there. The “Autonomous Republic of Crimea” (in the unitary state of Ukraine) was created in the 1996 Constitution of Ukraine in order to head off Russian irredentism, and gives Russians substantial linguistic and other privileges. The irredentist movement effectively disappeared. See my “The Crimean Autonomy: Innovation or Anomaly?” in Marc Weller and Stefan Wolff (eds) Autonomy, Self-governance and Conflict Resolution: Innovative approaches to institutional design in divided societies (Routledge, 2005) pp.75-97
    If Crimea were to “join” the Russian Federation, Russia would be opening a Pandora’s box of intersecting self-determination claims.

  8. I agree with Bill’s comment on Crimean Tatars, whose voice will be totally disregarded in the upcoming referendum, and who are on top of having a claim to self-determination, were also subject to cruel deportations in Stalinist time (Sürgünlik, see http://www.massviolence.org/Surgun-The-Crimean-Tatars-deportation-and-exile?artpage=3#outil_sommaire_2 ) that some consider to be an intentional genocide. Speaking politically Russia will not benefit of such ‘self-determination’ practices, because it is the largest remaining empire with many peoples within its borders, and this practice is detrimental to Russia’s own integrity in the long run.

  9. “the new government is just starting to be in a position to govern. It is trying to restore law and order.”  Not to forget it’s the very “government” that broke the law (international and of the land) and has created the disorder. 

  10. Jordan, your view about Kosovo being a “unique” case is an entirely subjective opinion, not an objective fact that others have to take into account. This subjective opinion has been refuted not only by Serbia as the bearer of sovereignty over Kosovo and by Russia as UN veto power, but also by many other countries and legal authorities around the world. Neither does the advisory ICJ opinion for that matter state that Kosovo is a “unique” case. You’re arguing your position using what boils down to a euphemism. In a way, every case has is both unique and universal, just as elementary logic teaches us that every part belongs to a whole and that every whole is the sum of of its parts. Euphemisms make for great poetry and literature but it’s problematic to apply euphemisms into legal practice, even if it’s done under the weight of military power as in the case of NATO’s attack on Serbia. At the end of the day, Kosovo cannot be separated from the wider whole of international law irrespective of someone’s wishes that it be done so. Empty rhetoric is nothing more than empty rhetoric and now the ghost of Western duplicity in the Kosovo case comes back to haunt them once again. In 2008, it was Abkhazia and South Ossetia, today it’s Crimea, tomorrow? Who knows for certain what tomorrow will bring… The only thing that’s certain is that Kosovo is not a “unique” case, no matter how many times NATO affiliates repeat it as a mantra…

  11. @Steven:
    “Is there a constitutional crisis in the Ukraine? And if so, why hasn’t the Ukrainian constitutional court raised its voice?”
    Yes, there is a constitutional crisis in Ukraine right now. The problem with the constitutional court (which should have reviewed evidence against Yanukovich gathered by a special investigation committee before the parliament could have ousted him with a three quarter majority according to the constitution, that three quarter majority was missed by the way, let alone the whole impeachment proceeding prescribed by the constitution) is, that it got effectively dissolved by the new rulers in Kiew (and the newly appointed prosecutor general opened cases against the judges). So the constitutional court of the Ukraine simply couldn’t raise its voice, because the new powers shut it down pretty quickly.

  12. No question about it, the interim PM and the U.S. CIA have dealt the world another blow by overstepping International Laws they refuse to recognize as legitimate. And pillage under cover of BRUTE FORCE!!!! ie. MURDER.

  13. In the absence of legitimate government (as defined in the constitution of Ukraine – not in the newspapers and blogs, let alone foreign), the popular will and laws of the autonomous region are the only guidance.  95.5% of the Crimean citizens vote to reunite with Russia (as reported today by Forbes). Whoever is in power now should first restore the constitution (by withdrawing themselves from the institutions they violently usurped), then claim the self-governing region back… 

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