Save

From Kosovo to Crimea and Beyond: On Territorial Integrity, Unilateral Secession and Legal Neutrality in International Law

In: International Journal on Minority and Group Rights
View More View Less
Full Access

In the aftermath of the Ukrainian Revolution, Ukraine’s autonomous region of Crimea declared independence and filed an application to subsequently join the Russian Federation. In seeking to justify these acts, both the Crimean authorities and the Russian Federation referred to international law, including the International Court of Justice’s Advisory Opinion on Kosovo’s unilateral declaration of independence. In this Advisory Opinion, the Court indeed found that the principle of territorial integrity merely applies in the relationship between States and concluded that general international law does not contain a prohibition on unilateral declarations of independence. These findings and the interpretation of the Advisory Opinion as put forward by the Crimean and Russian authorities, however, raise pertinent questions. This article therefore aims to shed light on the scope of the principle of territorial integrity of States and its implications for the legality of and perceived legal neutrality concerning unilateral secession under international law.

Abstract

In the aftermath of the Ukrainian Revolution, Ukraine’s autonomous region of Crimea declared independence and filed an application to subsequently join the Russian Federation. In seeking to justify these acts, both the Crimean authorities and the Russian Federation referred to international law, including the International Court of Justice’s Advisory Opinion on Kosovo’s unilateral declaration of independence. In this Advisory Opinion, the Court indeed found that the principle of territorial integrity merely applies in the relationship between States and concluded that general international law does not contain a prohibition on unilateral declarations of independence. These findings and the interpretation of the Advisory Opinion as put forward by the Crimean and Russian authorities, however, raise pertinent questions. This article therefore aims to shed light on the scope of the principle of territorial integrity of States and its implications for the legality of and perceived legal neutrality concerning unilateral secession under international law.

1 Introduction

In the aftermath of the Ukrainian Revolution, Ukraine’s autonomous region of Crimea held a regional referendum regarding its future status on 16 March 2014. Reportedly, a vast majority of more than ninety-five per cent of the votes cast supported the intention of Crimea’s parliament to join the Russian Federation. On 17 March 2014, the Crimean parliament declared the Republic of Crimea to be an independent State and filed an application to subsequently become part of Russia.1 The day after, an accession agreement formally declaring Crimea to be a federal subject of the Russian Federation was signed by President Putin and the representatives of Crimea.2 As such, the Crimean authorities sought to achieve the secession of the Autonomous Republic of Crimea from Ukraine and, subsequently, integration with the Russian Federation. In seeking to justify these acts, both the Crimean authorities3 and the Russian Federation4 referred to international law, including the International Court of Justice’s Advisory Opinion on Kosovo’s unilateral declaration of independence.

Indeed, in its Advisory Opinion on Kosovo’s unilateral declaration of independence, the International Court of Justice (icj) concluded that general international law does not contain a prohibition on unilateral declarations of independence. This conclusion was partly based on the finding that the principle of territorial integrity merely applies in the relationship between States. These findings, however, raise some pertinent questions. Is the scope of the principle of territorial integrity actually limited to inter-State relations and are non-State (secessionist) entities not bound by it at all? Can it rightly be argued that the principle of territorial integrity does not prohibit or at least restrain attempts at unilateral secession, as some States had also questioned in the Kosovo advisory proceedings? And, related to this, is international law truly ‘neutral’ to attempts at unilateral secession, as is often contended?5

This article aims to shed light on the scope of the principle of territorial integrity of States and its implications for the legality of unilateral secession under international law. To this end, the traditional conception of the principle of territorial integrity as reflected by the icj will be explained as well as how this pertains to the thesis that international law is ‘neutral’ as regards declarations of independence and secession. Subsequently, an alternative, more inclusive interpretation of territorial integrity, suggesting that the principle does apply to non-State actors as well, will be considered. The implications of this interpretation for the lawfulness of attempts at unilateral secession and the ‘legal neutrality thesis’ will be explored and against this backdrop, the developments with respect to Crimea will be briefly evaluated.

2 The Traditional Conception of Territorial Integrity

2.1 The Content of the Principle of Territorial Integrity

The principle of territorial integrity of States is considered to be one of the cornerstones of the international legal order and of the United Nations’ Charter system. As various prominent scholars contended, “[f]ew principles in present-day international law are so firmly established as that of the territorial integrity of States”.6 It is a corollary of State sovereignty as it preserves the “territorial ‘oneness’ or ‘wholeness’ of the State”7 and as such, provides for “the spatial context for the existence of the State”.8 Strongly related to this is the principle of political independence, which protects the autonomy of the State with respect to the exercise of State functions (e.g., jurisdiction) over its territory. These principles are often jointly mentioned and affirm the sovereignty of the State and the inviolability of borders.9

As a consequence of the territorial motives underlying World War ii, the un Charter emphasises the principle of territorial integrity in the context of the prohibition of the threat and use of force, proclaiming in Article 2(4) that “[a]ll Members shall refrain in their international relations from the threat or the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.10 It is clear from this provision that the principle of territorial integrity is violated in case of the threat or use of force that is directed against the control and possession of a State’s territory or a part thereof. As will also be seen below, other references to the principle of territorial integrity emerged in various legal and political instruments in due course, extending the relevance of the principle beyond the use of force. In general, the (forcible) dismemberment or loss of control of (part of) a State’s territory is seen to infringe the principle of territorial integrity. This obviously implies that the occupation of (part of) a State’s territory by a third State would violate the principle, but also the indirect involvement in the internal affairs of a State, for example, by a third State actively supporting rebels with a view to gaining control over a territory may be seen to violate the territorial integrity of the State.11 As such, territorial integrity is closely related to the customary principle of non-intervention as well, which prohibits intervention in matters in which the State is entitled to freely decide on the basis of its sovereignty.12 The State is entitled to protect itself against any such challenges to its territorial integrity.13

2.2 The Scope of the Principle of Territorial Integrity

While it is beyond doubt that States are the beneficiaries of the principle of territorial integrity, a pertinent question is who are the addressees of this principle? Phrased differently: who are to respect this principle and who is capable of actually violating it? As already noted above, in the Kosovo Advisory Opinion, the icj concluded that “[t]he principle of territorial integrity is confined to the sphere of relations between States”.14 To substantiate this position, the Court referred to three international instruments that include the principle of territorial integrity. First, reference was made to Article 2(4) of the un Charter. The Court subsequently invoked the General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (hereafter: Friendly Relations Declaration), which is seen to be reflective of customary international law.15 Principle I, paragraph 1 of this Declaration stipulates that “States shall refrain in their international relations from the threat or use of force against the territorial integrity of political independence of any State”.16 Finally, the Court recalled the Helsinki Final Act, which declares in Article iv that “[t]he participating States will respect the territorial integrity of each of the participating States”.17 All three paragraphs to which the Court referred are explicitly addressed at States and frame territorial integrity first and foremost in the context of the prohibition of the threat or use of force in their international relations. Considering these paragraphs, it is understandable that the Court arrived at the conclusion that the scope of the principle of territorial integrity is limited to the sphere of inter-State relations.18 The Court has also endorsed this view in its previous case law.19 From this perspective, States are both the beneficiaries and addressees of the principle: the territorial integrity of one State can only be violated by another State.

2.3 Territorial Integrity and Unilateral Secession

In the Kosovo Advisory Opinion, the Court’s conclusion on the scope of the principle of territorial integrity was made in the context of the lawfulness of unilateral declarations of independence – an issue that the Court carefully distinguished from questions concerning the scope of the right to self-determination beyond decolonisation and the potential existence of a right to (remedial) secession.20 Yet, its holding on the scope of the principle of territorial integrity is of broader relevance and logically has implications for the permissibility of unilateral secession. In this connection, the ostensible dichotomy between the principle of territorial integrity and the external exercise of the right to self-determination of peoples through unilateral secession deserves to be highlighted. The first seeks to maintain the territorial status quo, while the latter leads to unwished-for alterations in the State’s territory and its loss of control of a part thereof. In view of this, it has often been argued that the principle of territorial integrity poses a barrier or even prohibition to attempts at unilateral secession and, likewise, for the potential existence of an international legal right in this respect. Various States participating in the advisory proceedings on Kosovo also took this position.21 The Court’s finding on the scope of the principle of territorial integrity, however, seems to oppose this reading. Since secession is by definition sought by entities that are not States (yet) – but aspire to become one – the issuing of a unilateral declaration of independence or any other unilateral action aimed at secession would not impair the principle of territorial integrity.22 In the Court’s view, the principle is not opposable to secessionist entities at all.

This issue was also discussed in the expert reports that were prepared for the Canadian Supreme Court’s Reference re Secession of Quebec (hereafter: Quebec case).23 The experts generally shared the view that sub-State entities are not bound by the principle of territorial integrity. Although this argument was presented in various ways and with differing nuances, the experts involved agreed that the principle of territorial integrity does not apply to seceding groups, since

[s]uch groups are not subjects of international law at all, in the way that states are. A group does not become a subject of international law simply by expressing its wish to secede. Until an advanced stage in the process, secession is a matter within the domestic jurisdiction of the affected state.24

Hence, according to the experts, the principle of territorial integrity is normally irrelevant in situations concerning secession. In their view, only two exceptions apply. First, if the attempt to secede is actively supported by another State or even carried out by foreign authorities in the sense that these invade a territory with the object of separating it from the parent State, these events would constitute a violation of the principle of territorial integrity. Second, it was emphasised that the State “is entitled to resist challenges to its territorial integrity, whether these challenges are internal (e.g., secession) or external”.25

By insisting on the abovementioned traditional reading of the principle of territorial integrity, both the icj and the experts involved in the Quebec case seemed to confirm what is generally referred to as the ‘legal neutrality’ thesis. Seen from this perspective, international law remains ‘neutral’ with respect to unilateral declarations of independence and secession, for one will search in vain for an explicit authorisation or prohibition of unilateral secession in international law. As Lauterpacht put it: “[i]nternational law does not condemn rebellion or secession aiming at the acquisition of independence”.26 Those issues should rather be seen as a domestic affair of the affected State, while only the consequences of such action – such as questions of statehood and the obligation to withhold recognition – are regulated by international law.27 This implies that although there is no right to independence for a sub-State entity beyond the colonial context, such entity could still become an independent State despite a claim to territorial integrity by the parent State.28

3 Reconsidering the Scope of the Principle of Territorial Integrity: Towards a More Inclusive Interpretation?

While the traditional interpretation of the principle of territorial integrity as employed by the icj may well be understandable in view of the sources referred to and accurate to a certain extent, it seems somewhat too restrictive and only half the truth. For, other relevant sources seem to point towards a different, more inclusive interpretation of the principle of territorial integrity, indicating that the principle is actually relevant to instances of unilateral secession. As such, it deserves to be considered how the principle of territorial integrity functions in this context and whether the legal neutrality thesis can actually be upheld in this respect. This will be explored below.

3.1 Reconsidering Theory

As was explained above, the icj recalled three international instruments to substantiate its argument concerning the scope of the principle of territorial integrity, including the Friendly Relations Declaration. It is striking, however, that the icj only made reference to the first elaboration of this principle in the Friendly Relations Declaration, which indeed refers to States and the prohibition of the use of force. The Court, however, neglected the subsequent elaboration of the principle of territorial integrity in this document, which reads as follows:

Nothing in the foregoing paragraphs [concerning the right to self-determination] shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.29

This paragraph, which is generally referred to as the ‘safeguard clause’, elaborates on the principle of territorial integrity beyond the use of force: it refers to territorial integrity in the context of the right to self-determination of peoples. And more importantly, as the clause does not specify who can commit the action that “would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”, this could be a State as well as a non-State entity. Since the clause refers to territorial integrity in the context of the right to self-determination, territorial integrity seems to be construed as a limitation to this right. This suggests that the principle of territorial integrity is also addressed at non-State actors, namely the subjects of the right to self-determination: peoples. This interpretation is confirmed by the fact that the obligation for States to respect the territorial integrity of other States in their international (inter-State) relations, is enshrined in the ultimate paragraph of Principle V of the Friendly Relations Declaration: “[e]very State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country”.30 As Jure Vidmar aptly observed, “[i]f the first elaboration of the principle of territorial integrity applied only to states, it is not clear why the principle would need to be elaborated twice, in two consecutive paragraphs and in different formulations”.31

In addition to the Friendly Relations Declaration’s safeguard clause, other phrases indicating that the applicability of territorial integrity is not confined to the relationships between States can be found in several international and regional instruments dealing with the rights of minorities and indigenous peoples.32 The un Declaration on the Rights of Indigenous Peoples, for instance, provides for a clause that unmistakably affirms that the scope of the principle of territorial integrity extends to actors other than States as well. Using wording similar to the Friendly Relations Declaration’s safeguard clause, Article 46(1) of the Declaration provides that:

[n]othing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity to perform any act contrary to the Charter of the United Nations or construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.33

As it expressly refers to a “State, people, group or person” with respect to conduct (negatively) affecting the territorial integrity of States, it is evident that the addressees of this principle also include the non-State entities mentioned.

To the same effect, the Council of Europe’s Framework Convention for the Protection of National Minorities makes reference to the principle of territorial integrity of States against the backdrop of the rights of minorities. Article 21 of the Framework Convention stipulates that “[n]othing in the present Framework Convention shall be interpreted as implying any right to engage in any activity or perform an act contrary to the fundamental principles of international law and in particular of the sovereign equality, territorial integrity and political independence of States”.34 This provision emphasises the relevance of the fundamental principles of international law and denotes that the protection of persons belonging to national minorities should respect these principles, including the principle of territorial integrity of States.35 On the face of it, it may seem that this safeguard clause is merely addressed at States, thus aiming to avoid external assistance to separatism. The French text, however, clearly shows that the rights and obligations referred to here are specifically directed at non-State entities, namely individuals:

[a]ucune des dispositions de la présente Convention-cadre ne sera interprétée comme impliquant pour un individu un droit quelconque de se livrer à une activité ou d’accomplir un acte contraire aux principes fondamentaux du droit international et notamment à l’égalité souveraine, à l’intégrité territorial et à l’indépendance politique des Etats.36

3.2 Reconsidering Practice

When reassessing the scope of the principle of territorial integrity, the practice of international and regional organisations should also be considered, since resolutions and other documents issued by these organisations arguably point at an intra-State dimension of the principle as well. In the advisory proceedings on Kosovo’s unilateral declaration of independence, Serbia was one of the States referring to un Security Council resolutions to show the importance attached to the principle of territorial integrity and to demonstrate how the principle is applied to internal, non-State actors.37 In this respect, Serbia recalled un Security Council resolutions concerning the conflicts in, inter alia, Bosnia-Herzegovina, Somalia, and Sudan.38 With respect to the conflict in Bosnia-Herzegovina, for instance, Resolution 787 (1992) expressed the Security Council’s deep concern on “the threats to the territorial integrity of the Republic of Bosnia Herzegovina”39 and “strongly reaffirms its call on all parties and others concerned to respect strictly the territorial integrity of the Republic of Bosnia and Herzegovina, and affirms that any entities unilaterally declared or arrangements imposed in contravention thereof will not be accepted”.40 In view of the nature of the conflict concerned, this call on “all parties” to the conflict to respect the territorial integrity of the Bosnia and Herzegovina is clearly addressed at groups within the State as well. Besides Serbia, various other States participating in the advisory proceedings on Kosovo’s unilateral declaration of independence adduced comparable arguments, contending that the principle of territorial integrity is not merely applicable to inter-State relations, but extends to intra-State groups as well.41 Notably, the Russian Federation contended “the duty to respect sovereignty and territorial integrity […] is a legal obligation stemming from peremptory norms of international law. Those norms are binding not only upon Member States, but upon all subjects of international law”.42

On the regional level, this more inclusive interpretation of the principle of territorial integrity seemed to be endorsed by the Organisation of African Unity (oau, currently African Union), which in 1997 announced to combat secession in the Comoros so as to realise the “cardinal principle of the oau of respecting the unity and territorial integrity of States”. Since the situation at that time concerned an entirely internal conflict, without any external involvement, it can be argued that the oau considered the principle of territorial integrity to apply to non-State entities as well.43 A similarly broad understanding of the principle was adopted by the Independent International Fact-Finding Mission on the Conflict in Georgia, which was established by the Council of the European Union in December 2008. In its Report on the situation in Georgia, it contended that the thesis that the principle of territorial integrity of States does not apply to non-State entities is “not fully persuasive, especially as international law increasingly addresses situations within the territory of states”.44

In view of the above, it appears that the Court’s conclusion that the scope of the principle of territorial integrity is confined to the sphere of inter-State relations is too restrictive. The principle is often recalled in the context of the prohibition of the threat or use of force and in that framework, it generally applies to States only. It was seen, however, that other references to the principle of territorial integrity extend the scope of the principle beyond the context of the use of force and to include sub-State entities as well. Hence, actors other than States are also subject to an obligation to respect the principle.

4 Inclusive Territorial Integrity: Implications for the Legality of Unilateral Secession

4.1 Territorial Integrity as a Prohibition of Unilateral Secession?

Having demonstrated that the principle of territorial integrity has an intra-State dimension in addition to the traditionally acknowledged and often-referred to inter-State dimension, the question rises what the implications of this finding are with respect to the legality of unilateral secession under international law. Does the conclusion that non-State entities are also bound by the principle of respect for the territorial integrity of States imply that the right to self-determination may only be implemented internally and that unilateral secession is prohibited under international law?

The more inclusive interpretation of the principle of territorial integrity as advocated above seems to imply that beyond the context of decolonisation, the right to self-determination should not be implemented through the unilateral creation of an independent State, as that would conflict with the territorial integrity of the parent State.45 Rather, the right to self-determination should be implemented internally, within the borders of the parent State, in order to respect its territorial integrity. The Supreme Court of Canada also confirmed this outlook in the Quebec case, where it considered the question of secession against the backdrop of the principle of territorial integrity and found that “international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states”.46 Thus, according to the Supreme Court, the right to self-determination of peoples is effectively restricted by the territorial integrity of States.47 Only in “the most extreme of cases and, even then, under carefully defined circumstances” could the principle of territorial integrity give way to the external implementation of the right to self-determination. For the Supreme Court, such exceptional circumstances included cases of decolonisation and situations in which a people “is subject to alien subjugation, domination or exploitation outside a colonial context”.48 Referring to several scholars whom it did not mention by name, the Supreme Court subsequently observed that a third circumstance under which external self-determination would be permitted has been suggested. It noted that the rationale is that “when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession”.49

Indeed, the safeguard clause of the Friendly Relations Declaration has led some to argue that contemporary international law acknowledges a right to secession as a remedy of last resort to serious injustices. A revised (a contrario) reading of this clause would allegedly lead to the conclusion that the principle of territorial integrity does not apply to repressive States that persistently deny a people’s right to internal self-determination and commit gross human rights violations. While there is a certain body of support for the so-called right to remedial secession in international law, the doctrine of remedial secession is highly controversial. In addition to definitional problems, it only has a weak basis in some limited case law and is by no means generally accepted in the practice and opinions of States.50 This was also indicated by the icj in the Kosovo Advisory Opinion, in which it rightly observed that “radically different views” existed on the issue of self-determination beyond decolonisation and that “[s]imilar differences existed regarding whether international law provides for a right of ‘remedial secession’ and, if so, in what circumstances”.51In fact, in the Kosovo advisory proceedings, only eleven out of the thirty-six participating States argued in favour of the existence of such right to remedial secession.52 The Canadian Supreme Court therefore appropriately added an often-overlooked caveat to its observation and noted that it “remains unclear whether this third proposition actually reflects an established international law standard”.53 This dilemma was also observed by the Independent Fact-Finding Mission on the Conflict in Georgia, which acknowledged that “[a] limited, conditional extraordinary allowance to secede as a last resort in extreme cases is debated in international legal scholarship”. However, it concluded “that such a remedial ‘right’ or allowance does not form part of international law as it stands. The case of Kosovo has not changed the rules”.54 In sum, a right to remedial secession is not (yet) accepted in contemporary international law.

In contrast to the controversial argument of a right to remedial secession, which considers unilateral secession to be lawful under some exceptional circumstances, it has also been contended that the application of the principle of territorial integrity to non-State entities automatically implies an absolute prohibition of unilateral secession. According to Malcolm N. Shaw, for instance, Security Council’s resolutions “calling upon particular groups seeking to secede from a specific independent state to respect the national unity and territorial integrity of that state” involve “an international legal duty not to secede” incumbent upon that particular group.55 With respect to general international law, Alexander Orakhelashvili likewise noted that:

[a]s soon as the principle of territorial integrity applies, it necessarily outlaws secession without the consent of the parent state. Such understanding avoids systemic inconsistency under which international law would guarantee territorial integrity yet would not prohibit secession.56

A close reading of the relevant sources discussed above, however, paints a slightly different and more nuanced picture as very cautious language is employed. As was already explained, the Framework Convention stipulates that the rights proclaimed should not be understood “as implying any right to … act contrary to” the principle of territorial integrity of States.57 In other words, the rights enshrined in the Framework Convention should not be interpreted as including a right to unilateral secession. A pertinent question, however, is whether the exclusion of a right to secede unilaterally necessarily implies that such action is also illegal or prohibited under international law. In this respect, reference should be made to the Friendly Relations Declaration, which merely stipulates that the “dismemberment” or “impairment” of the territorial integrity of a State is not “authorized” or “encouraged”.58 Similar terminology was employed in the un Declaration on the Rights of Indigenous Peoples.59 Considering these wordings, it would go too far to contend that the principle of territorial integrity actually outlaws or prohibits attempts at unilateral secession.60 This is also what the icj seemed to suggest in the Kosovo Advisory Opinion, as it recalled “numerous instances” throughout history in which the issuing of a unilateral declaration of independence that was strongly opposed by the parent State at first, led to the creation of a new State.61 According to the Court, practice does not indicate that these newly created States were illegal under international law due to their emergence against the will and territorial claim of the parent State.62 But while not involving an outright prohibition of attempts at unilateral secession, the principle of territorial integrity should be seen to form a serious barrier to such attempts. As the relevant instruments discussed demonstrate, international law highly values protecting the territorial integrity of States and expects both States and non-State actors to respect this fundamental principle.

4.2 The ‘Legal Neutrality’ of International Law

This brings us back again to what is generally referred to as the ‘legal neutrality’ thesis: international law neither authorises nor prohibits unilateral declarations of independence or secession. As a consequence, a non-State entity attempting so secede unilaterally would in principle not be legally prevented to become a State.63 Some authors have taken the ‘legal neutrality’ of international law one step further, so as to argue that unilateral secession is actually permitted. Thomas M. Franck, for instance, contended, “quite simply, the law is neutral. It permits, and certainly does not prohibit, secession”.64 Yet, such a far-reaching reading of the ‘legal neutrality’ thesis is unsound. As Alexander Orakhelashvili pointed out, “the ‘neutrality’ of secession cannot be used to generate or modify rights and obligations on the international plane the way Franck advocates it, for in that case secession would no longer be neutral”.65 At the same time, however, the ‘legal neutrality’ of international law should not be interpreted in a too literal sense, implying that international law is truly impartial on the issue. Such reading would be inaccurate, since it follows from the safeguard clause of the Friendly Relations Declaration and other relevant instruments that international law strongly disfavours unilateral secession, while protecting existing States against disintegration from within.66 In fact, in order to actually become a State under international law, practice shows that it is insufficient for the entity to meet the Montevideo criteria for statehood, which require the entity concerned to have a permanent population, a defined territory, a government, and the capacity to enter into relations with other States.67 In addition to these prerequisites, the entity would have to overcome the parent State’s counterclaim to territorial integrity. Various modalities exist to do so, the least controversial being a waiver of the claim to territorial integrity by the parent State itself, either on the basis of an existing constitutional arrangement, or by (prior or subsequent) political approval ad hoc.68

5 In Conclusion: Implications for the Case of Crimea and Beyond

As the references to the Kosovo Advisory Opinion by the Crimean and Russian authorities illustrate, the Court’s pronouncement on the scope of the principle of territorial integrity seem to have raised false hopes for secessionist entities and their allies. For, there are good reasons to believe that contemporary international law is more inclusive and nuanced than the Court suggested. The previous sections have demonstrated that the principle of territorial integrity extends beyond the threat or use of force and applies to both States and non-State actors. It was also explained that although the intra-State dimension of the principle requires secessionist entities to respect the territorial integrity of States, the language of the relevant sources indicates that the principle cannot be seen to actually prohibit or outlaw (unilateral) secession. Consequently, the ‘legal neutrality’ thesis with respect to secession can be upheld in the sense that international law neither contains an explicit authorisation nor outright prohibition of (unilateral) secession. It should not, however, be interpreted to imply international law’s impartiality or even permissibility towards this issue. On the contrary: international law strongly disfavours unilateral secession, while it protects existing States against the disintegration of their territory. In fact, in order to become a State under international law, the territorial counterclaim of the parent State should be overcome. In this respect, a continuing counterclaim of territorial integrity will generally cause significant difficulties for secessionist entities to actually emerge as an independent State.

When evaluating the case of Crimea in light of the above, the factual situation surrounding Crimea’s declaration of independence should be taken into consideration. While many facts are still clouded to date and caution should thus be born in mind, both the inter-State and the intra-State dimension of the principle of territorial integrity are at stake with respect to Crimea. The traditional inter-State dimension of the principle of territorial integrity should be addressed first. Late February 2014, the first reports concerning Russian military intervention on the Crimean peninsula were heard.69 Although it is difficult to determine to what extent these reports were accurate, one month after the absorption of Crimea, President Putin himself acknowledged that the so-called ‘little green men’ in Crimea had been Russian troops, present in order to ensure that the people of Crimea could express their opinion.70 It should be noted that Russia’s military presence in Crimea was lawful to the extent that it remained within the terms of the 1997 Agreement Between Ukraine and the Russian Federation on the Status and Conditions of the Russian Black Sea Fleet’s Stay on Ukrainian Territory.71 However, as has been contended by Ukraine72 and demonstrated by others, the Russian activities in Crimea were beyond the terms of the bilateral Agreement.73 This seems to be confirmed by the fact that the Russian Federation Council formally authorised the use of military force in Ukraine on 1 May 2014.74 As such, Russian unlawful military presence in Crimea and its active (and armed) support of Crimea’s attempt at unilateral secession undoubtedly violated the principle of non-intervention. What is more, it constituted a violation of the principle of territorial integrity of Ukraine and can be qualified as – at least – the threat of force against the territorial integrity and political independence of Ukraine, in violation of Article 2(4) un Charter. The same holds for the subsequent absorption of the Crimean peninsula into the Russian Federation. In view of these events, the General Assembly adopted Resolution 68/262 which strongly reaffirmed the territorial integrity of Ukraine and called “upon all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea … and to refrain from any action or dealing that might be interpreted as recognizing such altered status”.75

In addition to this inter-State dimension of the principle of territorial integrity, an intra-State dimension is relevant to the case of Crimea as well. Phrased in the language of the Friendly Relations Declaration’s safeguard clause, Crimea’s unilateral secession constituted the “dismemberment” and “impairment” of Ukraine’s territorial integrity. As was explained above, however, this is not to say that unilateral secession is generally prohibited under international law. So while the people of Crimea cannot be seen to have acted illegally by unilaterally attempting to secede, they cannot be seen to have acted in accordance with international law either, for they were to exercise the right to self-determination internally so as to respect Ukraine’s territorial integrity. What is more, as the referendum and subsequently the issuing of the declaration of independence were facilitated by the presence of Russian military troops, Crimea’s steps towards unilateral secession were illegal according to the criteria phrased by the icj in the Kosovo Advisory Opinion.76 This illegality and the General Assembly’s call for non-recognition thus stem from the threat of the use of force connected to the attempted secession – which most likely qualifies as an egregious violation of general international law77 – rather than from the unilateral character of the events.78

In conclusion, Crimea’s secession from Ukraine and subsequent absorption by the Russian Federation were not in accordance with international law. However, today it seems a fait accompli. As Crimea did not aim at remaining an independent State permanently, Ukraine’s territorial counterclaim and the lack of recognition by the international community seem to have had limited impact on its effectiveness. Time will tell whether future secessionist attempts will stumble on or fail to be effective due to the principle of territorial integrity.

1 ‘Crimea declares Independence, seeks un Recognition’, rt, 17 March 2014, <rt.com/news/crimea-referendum-results-official-250/>, visited on 15 July 2015.

2 ‘Agreement on the accession of the Republic of Crimea to the Russian Federation signed’, Kremlin, 18 March 2014, <eng.kremlin.ru/news/6890>, visited on 15 July 2015.

3 ‘Crimea Parliament declares Independence from Ukraine ahead of Referendum’, rt, 11 March 2014, <rt.com/news/crimea-parliament-independence-ukraine-086/>, visited on 15 July 2015.

4 ‘Address by the President of the Russian Federation’, Kremlin, 18 March 2014, <eng.kremlin.ru/news/6889>, visited on 15 July 2015.

5 Another important question concerns the (il)legality of declarations of independence in international law. This question, however, is beyond the scope of the present article.

6 T.M. Franck et al., ‘Expert Opinion Prepared upon Request of the Government of Quebec: The Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty’, in A.F. Bayefsky (ed.), Self-determination in International Law. Quebec and Lessons Learned (Kluwer Law International, The Hague, 2000) p. 257 (para. 2.16).

7 S.K.N. Blay, ‘Territorial Integrity and Political Independence’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 2013) para. 1.

8 J. Dugard, The Secession of States and Their Recognition in the Wake of Kosovo (Brill/Nijhoff, Leiden, 2013) p. 122.

9 Blay, supra note 7, paras. 1 and 6.

10 Charter of the United Nations, 24 October. 1945, 1 unts xvi. In a similar vein, Article 10 of the Covenant of the League of Nations provided that Member States "undertake to protect and preserve against external aggression the territorial integrity and existing political independence of all members of the League". See Covenant of the League of Nations, 28 April 1919, 119 bfsp 1.

11 Blay, supra note 7, para. 8; Dugard, supra note 8, p. 134.

12 See Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, ga Res. 2625 (xxv), 24 Oct. 1970; International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986, icj, Merits, i.c.j. Reports 1986, p. 14, para. 205. See also M. Kohen, ‘The Principle of Non-Intervention 25 Years after the Nicaragua Judgment’, 25 Leiden Journal of International Law (2012) pp. 160–161; M.N. Shaw, International Law (Cambridge University Press, Cambridge 2014) p. 832.

13 See J.R. Crawford, ‘"Report by James Crawford: Response to Experts Reports of the Amicus Curiae"’ in A.F. Bayefsky (ed.), Self-Determination in International Law. Quebec and Lessons Learned (Kluwer Law International, The Hague, 2000) p. 158.

14 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for Advisory Opinion), 22 July 2010, icj, Advisory Opinion, i.c.j. Reports 2010, p. 403, para. 80.

15 Kosovo Advisory Opinion, supra note 14, para. 80 (referring to the Nicaragua case, supra note 12, paras. 191–193).

16 Friendly Relations Declaration, supra note 12, Principle i, para. 1.

17 Helsinki Final Act 1975, 14 ilm (1975) p. 1272.

18 On the inter-State character of Article 2(4) un Charter, see e.g., O. Corten, ‘Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law’, 24 Leiden Journal of International Law (2011) pp. 90–91; C. Kreβ, ‘Major Post-Westphalian Shifts and Some Important Neo-Westphalian Hesitations in the State Practice on the International Law on the Use of Force’, 1 Journal on the Use of Force and International Law (2014) pp. 51–52; A. Nollkaemper, ‘Attribution of Forcible Acts to States: Connections between the Law on the Use of Force and the Law of State Responsibility’, in N. Blokker and N. Schrijver (eds.), The Security Council and the Use of Force: A Need for Change? (Martinus Nijhoff, Leiden, 2005) pp. 133–171.

19 Corfu Channel (United Kingdom v. Albania), 9 April 1949, icj, Merits, i.c.j. Reports 1949, p. 4, p. 35; Nicaragua case, supra note 12, paras. 213, 251; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, icj, Judgment, i.c.j. Reports 2005, p. 168, para. 165.

20 See Kosovo Advisory Opinion, supra note 14, para. 82.

21 E.g., ibid., Written Statement of Argentina, 17 April 2009, paras. 69–80; Ibid., Oral Statement of China (Xue), cr 2009/29, 7 December 2009, at para. 25. I have elaborated on these arguments elsewhere: S.F. van den Driest, Remedial Secession. A Right to External Self-Determination as a Remedy to Serious Injustices? (Intersentia, Cambridge, 2013) pp. 261–273.

22 See J. Vidmar, ‘Conceptualizing Declarations of Independence in International Law’, 32 Oxford Journal of Legal Studies (2012) p. 163.

23 Supreme Court of Canada, Reference re Secession of Quebec, [1998], 2 s.c.r. 217. See also my discussion of this case elsewhere: Van den Driest, supra note 21, pp. 131–137, 159–165.

24 Crawford, supra note 14, p. 157. See also G. Abi-Saab, ‘Report by George Abi-Saab: The Effectivity Required of an Entity that Declares Independence in Order for it to be Considered a State in International Law’ pp. 72–73; A. Pellet, ‘Report by Alain Pellet: Legal Opinion on Certain Questions of International Law Raised by the Reference’, in A.F. Baykefsky (ed.), Self-Determination and International Law: Quebec and Lessons Learned (Kluwer Law International, The Hague, 2000) pp. 85–123; M.N. Shaw, ‘Report by Malcolm N. Shaw: Re: Order in Council P.C. 1996–1497 of 30 September 1996’, paras. 39–41.

25 Crawford, supra note 13, p. 158.

26 H. Lauterpacht, Recognition in International Law (Cambridge University Press, Cambridge 1947) p. 8.

27 E.g., J.R. Crawford, The Creation of States in International Law (Clarendon Press, Oxford, 2006) p. 390.

28 See J. Vidmar, ‘Territorial Integrity and the Law of Statehood’, 44 The George Washington International Law Review (2012) p. 709.

29 Friendly Relations Declaration, supra note 12, Principle v, para. 7.

30 Ibid., para. 8.

31 J. Vidmar, ‘The Kosovo Advisory Opinion Scrutinized’, 24 Leiden Journal of International Law (2011) p. 369.

32 This argument was also made by Serbia: Kosovo Advisory Opinion, supra note 14, Oral Statement of Serbia (Shaw), cr 2009/24, 1 December 2009, paras. 11–12.

33 Declaration on the Rights of Indigenous Peoples, ga Res. 61/295, 7 Sep. 2007 (emphasis added).

34 Framework Convention for the Protection of National Minorities and Explanatory Report, 1 February 1995, 34 ilm (1995) p. 351.

35 See Explanatory Report, supra note 34, para. 90.

36 See T. Christakis, ‘The icj Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’, 24 Leiden Journal of International Law (2011) pp. 84–85 (fn. 52, emphasis added).

37 Kosovo Advisory Opinion, supra note 14, Written Statement of Serbia, 17 April 2009, para. 441.

38 Ibid., paras. 442–472. See also Dugard, supra note 8, p. 138; Shaw, supra note 12, p. 379.

39 sc Res. 787, 16 Nov. 1992, Preamble.

40 Ibid., para. 3.

41 Supra note 21.

42 Kosovo Advisory Opinion, supra note 14, Oral Statement of the Russian Federation (Gevorgian), cr 2009/30, 8 December 2009, para. 34 (emphasis added).

43 Christakis, supra note 36, p. 85.

44 Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Vol. ii, September 2009, <rt.com/files/politics/georgia-started-ossetian-war/iiffmcg-volume-ii.pdf>, visited on 15 July 2015, pp. 136–137.

45 See also Vidmar, supra note 28, p. 708.

46 Quebec case, supra note 23, para. 122. See also Van den Driest, supra note 21, pp. 134–137.

47 Quebec case, supra note 23, paras. 122–126.

48 Ibid., paras. 131–133.

49 Ibid., para. 134.

50 I have extensively elaborated on this issue elsewhere. See Van den Driest, supra note 21.

51 See Kosovo Advisory Opinion, supra note 14, para. 82.

52 In addition to the Authors of the Unilateral Declaration of Independence (Kosovo), these States supporting the existence of a right to remedial secession were Albania, Estonia, Finland, Germany, Ireland, Jordan, the Netherlands, Poland, Slovenia, Switzerland and the Russian Federation. For a discussion of their arguments (and opposing views), see Van den Driest, supra note 21, pp. 245–273.

53 Quebec case, supra note 23, para. 135.

54 See Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, supra note 44, p. 141.

55 Shaw, supra note 12, p. 379 (emphasis added).

56 A. Orakhelashvili, ‘Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo’, 1 Max Planck Yearbook of United Nations Law (2008) p. 13.

57 Framework Convention for the Protection of National Minorities, supra note 34, Article 21.

58 Friendly Relations Declaration, supra note 12, Principle V, para. 7.

59 Declaration on the Rights of Indigenous Peoples, supra note 33, Article 46(1).

60 See also Christakis, supra note 36, p. 85; Vidmar, supra note 28, p. 708.

61 Kosovo Advisory Opinion, supra note 14, para. 79.

62 See also Vidmar, supra note 28, p. 709.

63 It should be noted that an exception seems to apply in those situations where a new State emerges "connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)". See Kosovo Advisory Opinion, supra note 14, para. 81.

64 T.M. Franck, ‘Report by Thomas M. Franck: "Opinion Directed at Question 2 of the Reference"’, in A.F. Bayefsky (ed.), Self-determination in International Law. Quebec and Lessons Learned (Kluwer Law International, The Hague, 2000) p. 83.

65 See A. Orakhelashvili, ‘The International Court’s Advisory Opinion on the udi in Respect of Kosovo: Washing Away the "Foam on the Tide of Time"’, 15 Max Planck Yearbook of United Nations Law (2011) p. 80.

66 Christakis, supra note 36, p. 85.

67 Inter-American Convention on the Rights and Duties of States (Montevideo Convention), 26 December 1933, 165 lnts p. 19. The criteria for statehood reflected in Article 1 of this Convention are considered to reflect customary international law. On the contemporary relevance of these requirements, see, e.g., M. Craven, ‘Statehood, Self-determination and Recognition’, in M.D. Evans (ed.), International Law (Oxford University Press, Oxford, 2014) pp. 217–246; C. Ryngaert and S. Sobrie, ‘Recognition of States: International Law or Realpolitik? The Practice of Recognition in the Wake of Kosovo, South Ossetia, and Abkhazia’, 24 Leiden Journal of International Law (2011) pp. 467–490.

68 See Vidmar, supra note 28, pp. 709–710 et seq.

69 See e.g., ‘Ukraine: Gunmen Seize Crimea Government Buildings’, bbc, 27 February 2014, <<www.bbc.com/news/world-europe-26364891>>, visited on 15 July 2015.

70 See ‘Putin Acknowledges Russian Military Servicemen Were in Crimea’, rt, 17 April 2014, <rt.com/news/crimea-defense-russian-soldiers-108/>, visited on 15 July 2015.

71 J.L. Black (ed.), Russia & Eurasia Documents Annual 1997 (Academic International Press, Gulf Breeze, 1998) p. 129.

72 Ministry of Foreign Affairs of Ukraine, On Violations of Ukraine’s Laws in Force and of Ukrainian-Russian Agreements by Military Units of the Black Sea Fleet of the Russian Federation in the Territory of Ukraine, 3 March 2014, <mfa.gov.ua/en/news-feeds/foreign-offices-news/18622-shhodo-porusheny-chinnogo-zakonodavstva-ukrajini-ta-ukrajinsyko-rosijsykih-ugod-vijsykovimi-formuvannyami-chf-rf-na-teritoriji-ukrajini> visited on 15 July 2015.

73 See e.g., E. Posner, ‘The 1997 Black Sea Fleet Agreement Between Russia and Ukraine’, 5 March 2014, <ericposner.com/the-1997-black-sea-fleet-agreement-between-russia-and-ukraine/>, visited on 15 July 2015; A. Sari, ‘When Does the Breach of a Status of Forces Agreement Amount to an Act of Aggression? The Case of Ukraine and the Black Sea Fleet sofa’, 6 March 2014, <opiniojuris.org/2014/03/06/ukraine-insta-symposium-breach-status-forces-agreement-amount-act-aggression-case-ukraine-black-sea-fleet-sofa/>, visited on 15 July 2015.

74 ‘Vladimir Putin Submitted Appeal to the Federation Council’, Kremlin, 1 March 2014, <ericposner.com/the-1997-black-sea-fleet-agreement-between-russia-and-ukraine/>, visited on 15 July 2015.

75 un General Assembly Resolution 68/262 (Territorial integrity of Ukraine), un Doc. A/res/68/262, 27 March 2014, para. 6 (vote record: 100 votes in favour, 11 votes against, and 58 abstentions).

76 Kosovo Advisory Opinion, supra note 14, para. 81, indicating that declarations of independence "connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)" are considered to be illegal.

77 Although the prohibition of the use of force is often considered to constitute a norm of jus cogens, the prohibition of the threat of force most likely is not. See e.g., Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries, Yearbook of International Law Commission (2001) Vol. ii (Part Two) p. 26, Commentary to Article 26, para. 5, which does not include the threat of force in its list of peremptory norms.

78 See Vidmar, supra note 22, pp. 169–176.

  • 9

    Blay, supra note 7, paras. 1 and 6.

  • 11

    Blay, supra note 7, para. 8; Dugard, supra note 8, p. 134.

  • 16

    Friendly Relations Declaration, supra note 12, Principle i, para. 1.

  • 17

    Helsinki Final Act 1975, 14 ilm (1975) p. 1272.

  • 24

    Crawford, supra note 14, p. 157. See also G. Abi-Saab, ‘Report by George Abi-Saab: The Effectivity Required of an Entity that Declares Independence in Order for it to be Considered a State in International Law’ pp. 72–73; A. Pellet, ‘Report by Alain Pellet: Legal Opinion on Certain Questions of International Law Raised by the Reference’, in A.F. Baykefsky (ed.), Self-Determination and International Law: Quebec and Lessons Learned (Kluwer Law International, The Hague, 2000) pp. 85–123; M.N. Shaw, ‘Report by Malcolm N. Shaw: Re: Order in Council P.C. 1996–1497 of 30 September 1996’, paras. 39–41.

  • 25

    Crawford, supra note 13, p. 158.

  • 29

    Friendly Relations Declaration, supra note 12, Principle v, para. 7.

  • 35

     See Explanatory Report, supra note 34, para. 90.

  • 43

    Christakis, supra note 36, p. 85.

  • 55

    Shaw, supra note 12, p. 379 (emphasis added).

  • 58

    Friendly Relations Declaration, supra note 12, Principle V, para. 7.

  • 66

    Christakis, supra note 36, p. 85.

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 802 92 0
Full Text Views 987 205 5
PDF Views & Downloads 926 476 17