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The Secession of Crimea: Where Does International Law Stand?

In: Nordic Journal of International Law
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  • 1 University of Shahid Beheshti, Iran
  • | 2 Islamic Azad University of Najafabad, Iran
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There is more legal complexity to the secession of Crimea than meets the eye upon the first encounter with the 2014–2015 crisis of Ukraine. The secession of Crimea calls into question the traditional configuration of the right to self-determination. The question of Crimea is compounded when, in discerning the legality of some of the key issues linked to it, one must pay regard to the standards of both international law and national law. In other words, a constructive analysis of the secession of Crimea must delve into the national law standards of Ukraine, whilst simultaneously analysing the effect of observing or otherwise ignoring those standards as for the legality of secession therein from the perspective of international law. With a view to this complexity, this essay aims to combine some of the most controversial dimensions to the secession of Crimea in one piece, and clarify whether the case of Crimea can in any way be justified by the rules of international law on self-determination.

Abstract

There is more legal complexity to the secession of Crimea than meets the eye upon the first encounter with the 2014–2015 crisis of Ukraine. The secession of Crimea calls into question the traditional configuration of the right to self-determination. The question of Crimea is compounded when, in discerning the legality of some of the key issues linked to it, one must pay regard to the standards of both international law and national law. In other words, a constructive analysis of the secession of Crimea must delve into the national law standards of Ukraine, whilst simultaneously analysing the effect of observing or otherwise ignoring those standards as for the legality of secession therein from the perspective of international law. With a view to this complexity, this essay aims to combine some of the most controversial dimensions to the secession of Crimea in one piece, and clarify whether the case of Crimea can in any way be justified by the rules of international law on self-determination.

** The authors would like to express their gratitude to Professor Markku Suksi for his insightful comments on an earlier draft of this article. They are also grateful to Heidi Öst for her useful critical comments.

1 Introduction

The right to self-determination possesses many dimensions. In its human rights law understanding, the concept of self-determination has been invoked in the context of civil and political rights, as well as social, cultural and economic rights.1 One could even argue that the right to self-determination is in some respects the supreme right of rights, without which it would be impossible to respect and ensure the exercise of a host of other human rights.2 However, despite its pressing importance, we are yet to form a consistent and clear appreciation of the very concept of self-determination for reasons that need not be repeated here.3

Among the many dimensions of self-determination, the most controversial is probably what is known as external self-determination. This refers to the gaining of a territorial secession from a State by the inhabitants of that territory, which may result in either independence or integration with another State. As a result of exercising external self-determination, a reshuffling of boundaries in the world map occurs, and often, an emergence of a new structure of power in a given region. These features alone are sufficient to render external self-determination one of the most problematic concepts in international law.4 It was this aspect of the right to self-determination, which, for the most part, gained momentum in the legal debate on Crimea.5

The separation of Crimea from Ukraine and the uncanny justifications of such an act generated a new wave of confusion as regards the boundaries of the right to self-determination. Undoubtedly, the complexity of the situation in Ukraine made the ensuing confusion even worse.6 Like many other inter-State crises, international law invoked both in favour and against the legality of secession in Crimea by the legal and diplomatic veterans of the parties in conflict. Meanwhile, the armed conflicts in some parts of Ukraine (whatever their nature) have continued, and the warring parties’ progress in reaching a peaceful settlement has been painstakingly slow. Nearly a year has gone by since the advent of the Ukrainian crisis, and it is high time to recall once again what happened in the winter of 2014, and what implications that will bring for the concept of self-determination. To appreciate the vitality of this enterprise, suppose that, in the not too distant future, with the support of a powerful third State, some separatists around the world declare independence and proceed to secede from a State of which they form a part. In the meantime, such separatists would not hesitate to cite the case of Crimea as a precedent. Can this be considered a sound legal argument in the face of the restraints put in place by international law on the exercise of secession? What arguments can be used against the potential precedential validity that may be assigned to the secession of Crimea? What about other controversial cases of declaration of independence and secession in international law, such as the independence of Kosovo?

This essay aims to provide an analysis of the issues associated with the independence of Crimea from Ukraine and the exercise of external self-determination, in which light a response to the potential secessionist claims can be formed. Accordingly, different dimensions of the situation in Crimea will be analysed in view of the rather rich jurisprudence of national and international jurisdictions. In so doing, firstly, a brief account of the crisis of Ukraine will be provided. Thereafter, consideration will be given to the response of some national jurisdictions to the declarations of independence, and how international law factors evaluate the legality of the declaration of independence in Crimea. Finally, some specific remarks will be made as to whether the secession of Crimea conformed to the rules of international law on self-determination.

2 A Brief Background of the Crisis of Ukraine

The crisis of Ukraine started in Kiev on 21 November 2013 when the then President Yanukovych’s administration abandoned an agreement on closer trade ties with the European Union, instead seeking closer cooperation with Russia, which sparked a continuous wave of protests in Kiev. On 21 February 2014 Ukraine’s opposition leaders and Yanukovych signed an agreement in the presence of some eu members. Accordingly, the parties agreed, inter alia, to refrain from using violence. More importantly, an agreement was reached for the presidential elections to be held no later than December 2014. However, one day after the agreement had been made (22 February 2014), the protesters took control of the presidential administration building, at which point Yanukovych fled to Russia.

On 23 February 2014 the Verkhovna Rada of Ukraine (the Parliament) adopted the Resolution “On conferring powers of the President of Ukraine on the Chairman of the Verkhovna Rada (Mr Turchynov, recognised as acting/interim President) according to article 112 of the Constitution of Ukraine”.7 At the same time, the focal point of the crisis changed from Kiev to Crimea. On 26 February 2014 pro-Russian gunmen seized key buildings in the Crimean capital of Simferopol, and the chaotic situation almost totally transferred from Kiev to Crimea.8

On 3 March 2014 the Council of the European Union condemned in its meeting “the clear violation of Ukrainian sovereignty and territorial integrity by acts of aggression by the Russian armed forces as well as the authorisation given by the Federation Council of Russia on 1 March for the use of the armed forces on the territory of Ukraine”.9 Three days later, the Verkhovna Rada of the Autonomous Republic of Crimea (the Assembly of Crimea) issued a resolution ‘[o]n holding of the all-Crimean referendum’ (including the City of Sevastopol), in which the following questions were submitted to the voters: “1) Do you support the reunification of Crimea with Russia as a subject of the Russian Federation? 2) Do you support the restoration of the Constitution of the Republic of Crimea of 1992 and the status of Crimea as a part of Ukraine?”10

On 11 March 2014 the Crimean Assembly adopted the Declaration of Independence of arc (Autonomous Republic of Crimea) and Sevastopol,11 according to which the majority of the Assembly members expressed their intention to join Russia pending an affirmative response by the public in referendum. Also, according to this Declaration, a demand was made to the Russian leadership to “launch the procedure of Crimea becoming part of Russia”.12 The Declaration was also approved by the Sevastopol City Council at the extraordinary plenary session (signed by the Chairman of the Sevastopol City Council, Yury Doynikov).13 At the same time, Russia posited that it would welcome the enjoinment of Crimea to its territory, if the voters opted for leaving Ukraine.14

In mid-March 2014, when the crisis of Ukraine had reached its peak, the Constitutional Court of Ukraine declared the 6 March Resolution to be unconstitutional. The following day, the Parliament adopted the Resolution “[o]n the early termination of authorities of the Verkhovna Rada of the Autonomous Republic of Crimea”, which came into force on the same day.15 Nevertheless, the referendum was held, and, according to the official results, the turnout was 83.1 per cent, with 96.77 per cent of participants voting for the integration of the region into the Russian Federation.16

However, the leaders of Western States almost unanimously opposed the referendum held in Crimea. Such authorities as President Obama,17 the President of the European Council and the President of the European Commission18 made it clear that they would not accept the legality of the Crimean referendum. Moreover, the un General Assembly, in a non-binding Resolution entitled ‘Territorial Integrity of Ukraine’, called upon States, international organisations and specialised agencies not to recognise “any change in the status of Crimea or the Black Sea port city Sevastopol,”19 which was adopted by 100 votes in favour, 11 against and 58 abstentions.

2.1 The Crisis of Crimea and the Constitutional Court of Ukraine

The issue of the constitutionality of the Resolution on holding a referendum in Crimea was brought to the attention of the Constitutional Court of Ukraine by the Acting President of Ukraine, the Chairman of the Assembly of Ukraine and the Ukrainian Parliamentary Commissioner for Human Rights.20

In this case, the arguments of the Court in its decision as to the constitutionality of the Resolution of the Assembly of Crimea about holding a referendum were solely based on the provisions of the Ukrainian Constitution. So, the analysis of the decision of the Court is of some prominence for coming to terms with the legality of the situation at hand from the standpoint of the Ukrainian national laws.

According to the Constitutional Court, “[t]he right of citizens to participate in a referendum is their inalienable constitutional right”.21 The right to hold local referendums was recognised for the Autonomous Republic of Crimea in a manner determined by the laws of Ukraine. However, the Court highlighted that “[q]uestions submitted on the local referendum may be only issued within the jurisdiction of the local authorities of the relevant administrative and territorial unit”.22 Regulatory acts of the Assembly of Crimea, and decisions of the Council of Ministers of the Autonomous Republic of Crimea, shall not contradict the Constitution and laws of Ukraine. They shall also be adopted in accordance with and in pursuance of the Constitution of Ukraine, the laws of Ukraine, and the acts of the President of Ukraine and the Cabinet of Ministers of Ukraine discussed in Article 135 of the Constitution of Ukraine.23

The Court also underlined that, according to Article 92 of the Constitution, the territorial demarcation of Ukraine shall exclusively be determined by the laws of Ukraine.24 On that basis, the conclusion of the Court was that:

Any changes to the territory of Ukraine shall be resolved exclusively by the all-Ukrainian referendum (Article 73 of the Constitution of Ukraine). Authority to call an all-Ukrainian referendum on issues indicated in said Article of the Constitution of Ukraine belongs to the Verkhovna Rada of Ukraine (paragraph 2 of part 1 of Article 85 of the Fundamental Law of Ukraine). Organization and procedure for conducting elections and referendums shall be determined exclusively by the laws of Ukraine (paragraph 20 of part 1 of Article 92 of the Constitution of Ukraine).25

Finally, the Court decided that the Assembly of Crimea violated the constitutional principle of the territorial integrity of Ukraine and exceeded its authorities by adopting the Resolution on the referendum. As a result, it was held that the Resolution in question does not comply with Articles 1, 2, 5 and 8, paragraph 2 of Article 19, Article 73, paragraph 3 of Article 85, paragraphs 13, 18 and 20 of Article 92, or Articles 132, 133, 134, 135, 137 and 138 of the Constitution of Ukraine.26 According to this analysis, neither the resolution of independence nor the decision to hold a referendum is acceptable. However, once it is established that holding the referendum is not legal as a matter of principle, it will be unnecessary to discuss the legality of the circumstances in which the referendum was held, as well as the result of the referendum from the standpoint of the Ukrainian domestic laws.27 That said, the particularities of the referendum in Crimea will be analysed at a later point in this piece with a view to the standards of international law.

The Constitutional Court of Ukraine is not the first national jurisprudence that has dealt with issues relating to such exercises as declaration of independence, referendum and secession. There are two famous national court’s decisions, which scrutinised in great detail the same questions as those presented before the Ukrainian court. As will be seen below, these two cases are particularly noteworthy for their detailed and constructive analysis of international law on self-determination.

3 National Courts and the Invocation of International Law on External Self-determination

A rather similar situation to that adjudged by the Ukrainian Constitutional Court was examined by the first Constitutional Court of Russia in the so-called Tatarstan case28 before the enactment of the 1993 Constitution. The most interesting fact about this case was that the Constitutional Court of Russia considered both the requirements of the 1978 Constitution of the Russian Federation and the rules of international law relevant to the concept of self-determination.29 In its reasoning, the Russian Court noted that the international documents do not allow that the right of self-determination be invoked in an outright manner such as to endanger the territorial integrity of States. As a result, the principle of territorial integrity must, according to the Court, be understood as placing some solid restraints on exercising the right to self-determination. Therefore, the Russian Court acknowledged the existence of the right to self-determination. However, it was the exercise of self-determination in the form of unilateral secession, which was criticised and restrained by the Court.30

Another factor that was also said to limit the exercise of the right to self-determination by the Court was the observance of human rights. That is to say, in order for a given population identified as ‘peoples’ to proceed with unilateral secession, their fundamental human rights must have been violated in a manner such that the securing of those rights would leave no alternative but a territorial secession. In this regard, Suksi’s analysis of the decision of the Constitutional Court of Russia deserves some attention:

The decision seems to indicate that, at least according to the former Constitutional Court of Russia, the pouvoir constituant, especially when understood as an equivalent to the right to self-determination, is to some extent limited by international law.31

What was remarkable about the case of Tatarstan was the emerging dialectic between national and international law on the concept of self-determination, which would in turn clarify the boundaries of unilateral secession in the post-colonial world. The formula arising from the judgment of the Russian Court in the case of Tatarstan was by no means alien to the dictates of international law on this matter. That is to say, beyond the context of colonialism, the protection of territorial unity has generally in international law taken priority over external self-determination. However, observing the sanctity of national borders has not been an absolute endeavour in international law. Rather, if a self-identified people are subjected to flagrant violations of human rights, a door can somehow arguably be opened for them towards secession as a manifestation of external self-determination.32

The interaction between national law and international law on the question of external self-determination (unilateral secession) was addressed in a more comprehensive and transparent manner by the Supreme Court of Canada in the famous case of Quebec.33 Much in the same way as the former Constitutional Court of Russia, the Canadian Court took account of the national and international law in the context of self-determination to convey its arguments. In terms of national law, the Canadian Court argued that not every act of unilateral secession can use the will of the majority as something of a mantra to justify a territorial separation. In this regard, the Court was of the opinion that democracy must be viewed “in the context of constitutional values”.34 One of the predominant themes of the Canadian constitution was, according to the Court, federalism, which secures national unity, whilst at the same time providing enough freedom for the population of different provinces to take many particularities of their lives into their own hands. Drawing on this, the Court concluded that insofar as the constitutional order of Canada is concerned, holding a referendum in a given area must be taken as the starting point of a negotiation process aimed at mediating between the interests of those seeking secession and the rest of population in Canada.35

As regards the rules of international law, the conclusion of the Canadian Court was essentially no different from that of the Constitutional Court of Russia in the case of Tatarstan. The Court noted that beyond “where ‘a people’ is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the State of which it forms a part” the right to self-determination in its territorial secession form finds no place for being exercised.36 However, the Court made a very interesting remark on the legality of declarations of independence in international law. In response to whether international law bestows upon local authorities in Quebec a right of secession, the Supreme Court of Canada discerned that international law does not per se prohibit a declaration of independence ‘leading to a de facto secession’. However, the Court acknowledged that “the ultimate success of such a secession would be dependent on recognition by the international community”.37 It seems that by conditioning ‘the ultimate success’ of secession upon international recognition, the Supreme Court leans towards the view that when it comes to a secession taking an international effect, international law becomes something of secondary importance to the realities of international relations.38 In 2010, the International Court of Justice (icj) also opined that international law does not prohibit declarations of independence. Yet, there remain some remarkable differences between the judgment of the Canadian Supreme Court and the icj’s decision, which will be discussed later.

In a similar fashion to the ruling of the Constitutional Court of Russia, the Canadian Court’s judgment drew on a particular mode of interaction between international law and domestic law regarding unilateral secessions. The essence of this interaction can be summarised in the following passage:

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.39

Therefore, the Supreme Court of Canada implies that the rules of international law on self-determination must be translated into a domestic legal framework, in which the importance of the principle of territorial integrity remains almost totally unrivalled. In sum, judgments of the Russian and Canadian Courts in the cases at issue provide us with an appraisal of international law on self-determination from the standpoint of national jurisprudences.40 This is particularly illuminating when one considers the icj’s judgment in the case of Kosovo, and therefore, endeavours to gain a comparative understanding of the permissibility of such issues as declaration of independence and holding referendums.

It is perhaps useful to mention that, unlike its Russian and Canadian counterparts, the judgment of the Constitutional Court of Ukraine entailed no reference to international law of self-determination and was solely based on the national law of Ukraine.41 Of course, this is hardly surprising, since the Crimean crisis had put the very sovereignty of Ukraine at risk. In such a situation, it is not unreasonable to see a judicial establishment accentuating the dictates of national law standards to the full exclusion of international law, if only for the sake of emphasising the predominance of national sovereignty.

4 The Application of International Law of External Self-Determination to Crimea

Generally, the talk of external self-determination in international law provokes so much controversy in that it runs counter to the principle of territorial integrity, one of the most fundamental pillars of statehood. Undoubtedly, the right to external self-determination had much to be commended in the context of colonialism for freeing the colonised people from the three devils of subjugation, domination and exploitation.42 By the same logic, external self-determination was considered a legitimising factor when it came to the armed struggle of people held under occupation.43 Yet, beyond these instances, the survival of external self-determination as a point of reference in international law is punctuated by serious doubts.44 Resultantly, today, when States speak of external self-determination, what they actually mean is freedom from external interference.45 In the post-colonial era, however, the focus of this right has fundamentally changed. In the un Friendly Relations Declaration,46 self-determination has been equated to self-government rather than independent statehood. In fact, the so-called Friendly Relations Declaration approves the special status of colonies, and emphasises that save for the cases of colonies and non-self-governing territories:

Nothing in the foregoing paragraphs 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.47

This formula is believed to represent an authoritative expression of general customary law, which clarifies the un Charter principles.48 The fact that the un Friendly Relations Declaration was adopted without a dissenting vote reinforces the customary billing that has been ascribed to it. In any case, the formula contained in the Friendly Relations Declaration is particularly relevant to situations in which sub-State groups aspire to acquire more control over their own affairs.49

It was seen in the previous section that in the practice of the Constitutional Courts of Russia and the Supreme Court of Canada in the Tatarstan and Quebec cases, the right to acquire secession would come into existence provided that first, a group identified as ‘people’ had been excluded by a given State from the exercise of the self-determination in any conceivable manner, and second, there would remain no other way of securing their human rights than seceding from their home State. Applying this understanding of the right to self-determination to Crimea, it is difficult to see how a case can be made for the exercise of this right in the form of declaring independence. Crimea, according to the Constitution of Ukraine, was an autonomous entity that had been granted some decision-making powers of an administrative nature. The Assembly of Crimea had the power within its material competence to adopt norms, which were binding inside the territory of Crimea. Under Article 135 of the Constitution, however, the norms adopted by the Supreme Council of Crimea were lower in terms of legal hierarchy than the Acts of the Ukrainian Parliament. This indicates that the self-government rights of Crimea were more of a regulatory or administrative nature than a legislative one. Therefore, the extension of self-government to Crimea was not comparable to some other semi-autonomous territories such as the Åland Islands, the Basque Country, Azores, Macau and Hong Kong, all of which possess legislative powers proper.50

However, public international law does not recognise a specific form or structure in order to satisfy a threshold of applicability for the right to self-determination. Nor does it interfere with the mode in which States organise their institutional arrangement at the sub-State level.51 Of course, this tolerance is conditioned upon the involvement of a ‘people’ at the decision-making levels, which is synonymous to the internal phase of the right to self-determination.52 Despite having only non-legislative powers, it is evident that the Ukrainian government had not excluded the Crimean population from participating in the affairs of the State, thereby denying them a meaningful exercise of internal self-determination.53 By the same token, there did not exist a flagrant and severe violation of the human rights of the inhabitants of Crimea. What if one argues that the apparent anti-Russian character of the Ukrainian uprising in 2014 could have made possible an outright violation of human rights in Crimea? Even in this case, it is hard to see the logic in extending an external exercise of self-determination in Crimea, since the concept of pre-emptive self-determination is neither known nor acceptable in the sphere of international law.54

4.1 Has the Case of Kosovo Set a Precedent for the Secession of Crimea?

In 2010 the icj was asked by the General Assembly the following question: ‘Is the unilateral declaration of independence by the Provisional Institution of Self-Government of Kosovo [in 2008] in accordance with international law?’ In order to answer this question, the Court first clarified its extent by stating that:

[T]he Court is not required by the question … to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act – such as a unilateral declaration of independence – not to be in violation of international law without necessarily constituting the exercise of a right conferred by it.55

The Court then continued:

[S]tate practice … points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.56

The icj expressly stated that the exercise of the right to self-determination through declaration of independence cannot be circumscribed to the instances of alien subjugation, domination and exploitation, or when people are in non-self-governing territories, by stating that ‘there were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases’.57

The conclusion of the icj could be considered problematic. The Court assumes that making a declaration of independence is permitted as a matter of principle, and then seeks to establish whether there has emerged a practice among States to the effect of putting a prohibition on making declarations of independence by separatists around the world. Here, on the surface, there seems to exist a methodological error in the way that the Court has adjudged the question of the legality of the declaration of independence. That is to say, if one submits to the fundamental importance of the principle of territorial integrity of a sovereign State as a grand principle of international law, then the Court should have monitored the emergence of a new rule permitting the declaration of independence in situations that do not concern alien subjugation, domination and exploitation. However, the Court did not intend to extract the legality of declaring independence as an exception to the principle of territorial integrity. Rather, the Court’s intention was to deduce the legality of declaring independence as a totally distinct matter to either territorial integrity or secession (that is, effecting the declaration of independence). To make this crystal clear, one must pay attention to the argument put before the icj by James Crawford:

Mr. President, Members of the Court, I am a devoted but disgruntled South Australian. I hereby declare the independence of South Australia. What has happened? Precisely nothing. Have I committed an internationally wrongful act in your presence? Of course not.58

In the view of the Court, the legality of declaration of independence is a totally separate issue from letting this declaration affect the territorial integrity of a given State. This explains why the Court delicately refrained from entering into the permissibility of external self-determination in Kosovo by saying:

[D]ebates regarding the extent of the right of self-determination and the existence of any right of ‘remedial secession’, however, concern the right to separate from a State […which…] is beyond the scope of the question posed by the General Assembly.59

In other words, it is one thing to say that international law does not prohibit a declaration of independence, and quite another to argue that international law does not take issue with effecting such a declaration.60 As to the former issue, the icj posited that there is no rule prohibiting the making of a declaration of independence, even in cases concerning internal situations. As for the latter question, namely, effecting the declaration of independence or separation from a State, the Court remained silent, simply stating that it went beyond the scope of the subject matter dealt with in the case of Kosovo.61 This reveals why the Court did not go to great lengths to recognise the importance of the principle of territorial integrity in international law, and only briefly touched upon this issue by arguing that it ‘is confined to the sphere of relations between States’.62

Suppose that the icj had viewed the two questions of declaring independence and territorial secession to have run together. In that case, it would have been a fatal mistake for the Court to employ the methodology that it did in order to prove that international law does not prohibit declarations of independence in principle. The most immediate effect of that hypothetical casuistry in legal reasoning would be that, instead of defining the question of the legality of declaring independence in terms of an exception to the general rule of territorial integrity, the Court would create a dilemma between the legality of a declaration of independence and territorial integrity. This dilemma would of course be an additional and unwelcome complexity to the already troubled interplay between self-determination and territorial integrity. However, the Court totally circumvented these additional problems by divorcing the exercise of declaring independence from the effecting of such declaration in the view of international law.

This is also where the mode of the icj’s reasoning differs from the approach adopted by the Russian and Canadian courts in the cases of Tatarstan and Quebec. There, the real focus of the Russian and Canadian Courts was the principle of territorial integrity, and they viewed the declaration of independence as being tantamount to exercising external self-determination. However, the icj was not bound to arrive at the same conclusion as the Russian and Canadian Courts for two reasons. First of all, the principal framework by which the icj was to consider the issues in Kosovo was international law, not the constitution of a particular State. Second, and more importantly, the question presented to the judges in the icj was not whether international law would recognise the independence of Kosovo per se, but rather, in the case of Kosovo the issue was the legality of the unilateral declaration of independence by the Provisional Institution of Self-Government of Kosovo from the vantage point of international law.

It is appropriate to conclude this section with a brief note on the precedential value of Kosovo for adjudging the legality of the Crimean independence. Of course, President Putin did not hesitate to cite Kosovo as a precedent for justifying the independence of Crimea:

[T]he Crimean authorities referred to the well-known Kosovo precedent – a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate.63

However, this seems to be an outright misinterpretation of the icj’s ruling in Kosovo, since by all means, the icj refrained from entering substantively into the question of secession. In the same vein, the relationship between the principle of territorial integrity and external self-determination was left unaddressed in the Court’s opinion. Naturally, one could argue that this tactical avoidance, as employed in the case of Kosovo, was the very weakness of the icj’s judgment and approach, as did Judge Simma and Judge Yusuf respectively in their declaration and separate opinion.64 Nonetheless, for better or worse, the icj’s conservative take on the question of independence significantly reduces the utility (precedential value) of its judgment in making a case for the independence of Crimea.65 The most one can infer from the icj’s judgment is the non-prohibition of declarations of independence in the view of international law. Even regarding this non-prohibition, there exist important prerequisites and conditions, discussed in the next section, which the declaration of independence in Crimea fell short of meeting.

4.2 Some Necessary Requirements for the Legality of a Declaration of Independence

According to the icj’s opinion in the case of Kosovo, the legality of the declaration of independence is contingent upon meeting some fundamental requirements. In this regard, the Court noted that in the Security Council’s resolutions concerning Southern Rhodesia, Northern Cyprus and Republika Srpska, the Security Council had declared all of the declarations of independence in the above cases illegal. By scrutinizing those cases, the Court established that:

the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, 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).66

Importantly though, the Court emphasised the exceptional character of such cases as northern Cyprus by confirming that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council.67

In order to discern the legality of the Crimean declaration of independence, one must first evaluate whether the use of force in Crimea was adopted in a similar manner (namely, unlawfully) with, say, northern Cyprus. This matter is of paramount importance, since three days before the adoption of the resolution of independence, the Council of the European Union strongly condemned what it characterised as:

the clear violation of Ukrainian sovereignty and territorial integrity by acts of aggression by the Russian armed forces as well as the authorisation given by the Federation Council of Russia on 1 March for the use of the armed forces on the territory of Ukraine.68

It must be borne in mind, however, that the declaration of independence of Crimea is different from the cases of Southern Rhodesia, Northern Cyprus and Republika Srpska in one respect, which is that the members of the Assembly of Crimea could be considered the representatives of the majority in Crimea. This is not the same as, for example, the Southern Rhodesia declaration, which, as described by Security Council resolution 216, was ‘made by a racist minority in Southern Rhodesia’.69 Yet, this difference is not in itself an issue germane to identifying the legality of the Russian military campaign in Crimea.

The decisive factor to be analysed here is whether the declaration of independence in Crimea was ‘connected with the unlawful use of force or other egregious violations of norms of general international law’ by Russia. According to the formulation of the icj, the mere existence of a connection between a declaration of independence and an unlawful use of force or other violations of jus cogens norms of general international law is sufficient to render illegal a declaration of independence.

Among the many justifications invoked to make the use of force by Russia legally valid,70 one is of crucial importance, and that is the invitation of Russia by (the ousted) President Yanukovych for security assistance to protect and stabilise Ukraine.71 In international law terms, assessing the legality of an intervention upon invitation is complicated, as State practice surrounding the issue is unclear. In this respect, the icj in the landmark case of Nicaragua v. United States of America stated that:

[t]he principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State – supposing such a request to have actually been made by an opposition to the régime in Nicaragua in this instance. Indeed, it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a state, were also to be allowed at the request of the opposition. This would permit any state to intervene at any moment in the internal affairs of another state, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law.72

Hence, according to the icj, intervention is allowable at the request of the government of a state. In order to see if the request of Mr Yanukovych was legally valid, it is necessary to reappraise the national law of Ukraine.

According to the analysis in the previous sections of this essay, the removal of the former President Yanukovych raised several constitutional questions. At the same time, it is not unreasonable to argue that the appointment of the interim President was not done in accordance with the constitutional order of Ukraine.73 Taking this line of argument to its extreme, one could conclude that, in principle, insofar as the constitutional laws of Ukraine were concerned, Mr Yanukovych remained the de jure President of Ukraine for the period when he made a request to Russia to make a military intervention in Crimea.74 However, making this radical assumption cannot on its own play a leading role in deducing the legality of the Russian intervention in Crimea, for it must first be specified whether the legal president of Ukraine had the authority to request Russia to bring its army into Crimea. In this regard, Article 106 of the Constitution is instructive.

According to Article 106, the President represents the state in international relations, is the Commander-in-Chief of the Armed Forces of Ukraine and administers, in the spheres of national security and defence of the state heads, the Council of National Security and Defence of Ukraine, forwards the submission to the Parliament on the declaration of a state of war, adopts the decision on the use of the Armed Forces in the event of armed aggression against Ukraine and adopts a decision, in the event of necessity, on the introduction of a state of emergency in Ukraine or in its particular areas, and also in the event of necessity, with subsequent confirmation of these decisions given by Parliament. The content of the 2004 Constitution is no different in this regard from the Constitution that is now ironically its predecessor.

It is true that Article 106 accorded a broad periphery of powers to the President of Ukraine. However, it seems particularly from paragraph 21 of Article 106 that it is not the discretion of the President alone that must be considered as the leading factor in making a call on the legality of a decision in the areas mentioned in Article 106. Rather, the subsequent confirmation of Parliament is needed to give effect to the subjective determinations of the executive. Even without considering the role of Parliament in confirming the determinations of the President, there is no explicit mention to the effect of the permissibility of a foreign intervention upon the request of the executive’s head. Considering the history of Ukraine as a ready target for foreign interventions under different excuses, it seems that the drafters of the Ukrainian constitution would have included the legality of intervention upon domestic invitation, had they considered such an inclusion necessary and beneficial for the security of Ukraine. In this case, the absence of such permission may well point to its prohibition.75 Furthermore, a traditional rule in international law requires a minimum degree of effectiveness as a prerequisite for the government authorities to invite foreign troops. This has been taken to mean that ‘governments which do not exercise any effective authority like phony governments, puppet regimes, or [even] governments in exile’ are not in a position to issue an invitation to foreign states for making military interventions in their home countries.76 Under this theory, of course, Mr Yanukovych was far from being entitled to invite Russia to enter Ukraine under any guise.77

In terms of international law, another, more recent theory can also be considered as carrying some relevance to the invitation of Russia by Yanukovych. This theory, which is on occasion referred to as the ‘popular sovereignty’ theory, posits that, even though lacking effective control, the decisions of a democratically elected government are legal. The application of this theory to the situation in Ukraine is confusing, to say the least. On one hand, some have argued that the scope of the application of the ‘popular sovereignty’ doctrine must be confined to situations of military coups.78 In other words, when there is widespread popular support behind protests resulting in the toppling of a regime, the popular sovereign doctrine does not yield much validity. Yet, there exists no decisive consensus on this matter. Does widespread popular support mean an overwhelming majority? Was there such an overwhelming majority in Ukraine for the purpose of ousting President Yanukovych? Even if one assumes that there was a beyond doubt majority in Ukraine demanding the removal of President Yanukovych, one still needs to deal with the forceful argument of the Russian ambassador in the Security Council:

I am trying to imagine what would happen if, while President Obama was in California, Mitt Romney turned up at the White House and the United States Congress, in one House of which there is currently a Republic majority, and all of a sudden voted to impeach President Obama. How would United States public opinion react to that? Would there be a manifestation of democracy? That is exactly what happened in Ukraine.79

The argument of Russia is plausible enough to call into question the legality of the process by which the former President Yanukovych was ousted. However, this argument cannot be invoked to the point of accepting that the invitation of Russia to intervene in Ukraine can be justified by the ‘popular sovereignty’ theory. First of all, if the rationale behind this theory is to secure effective sovereignty for a party with relative democratic legitimacy within its population, there is still room to argue that the particular turn of events in Ukraine in the winter of 2014 disqualified the then government of Ukraine to claim a popular-based legitimacy. More importantly, Yanukovych’s invitation to Russia was not made in accordance with the constitutional instructions of the Ukrainian laws.80 However, one cannot deny that the ‘popular sovereignty’ theory is a doctrine liable to many weaknesses and confusions, and the Ukrainian crisis itself dictates a need to revise and clarify the contours of this theory.81

4.3 The Right to Self-determination and Referendum

Referendum is frequently employed as a tool to determine the will of people on certain issues. However, holding referendums bears a close proximity to the issues surrounding self-determination. In fact, there has always been a close relationship between the pouvoir constituant and the concept of self-determination in international law,82 and for a complete fulfilment of the right to external self-determination, the most logical step is to clarify where the people stand on the question of how they wish to be governed. This parallel internal measure, whilst effectualising the principle of self-determination, constitutes an exercise of pouvoir constituant. Self-determination and pouvoir constituant would thus in many cases represent two sides of the same coin.83

The situation in Crimea also gave rise to serious questions as to the exercise of internal to external self-determination. Even considering that residents of Crimea were not in a position to conduct pouvoir constituant, they were not in principle prohibited from holding a referendum. However, it is here that the difference between declaration of independence and effecting independence comes to matter a great deal. That is to say, even the will of the people expressed at the referendum cannot necessarily make inroads into the territorial demarcations of a state.

It must be noted that the right to hold a referendum and the necessary requirements for its validity are two separate issues. Although it seems that from the perspective of international law, at least, Crimeans were not prohibited from holding a referendum, this fact does not in itself result in the acceptability of the referendum held therein.

Despite the fact that there has been no treaty-based rule for stipulating the necessary requirements of holding a referendum, the General Comment of the Human Rights Committee (hrc) concerning Article 25 (Participation in Public Affairs and the Right to Vote),84 as well as the icj decisions in some cases, provide us with valuable guidelines in this regard.

The referendum in Crimea presented the voters with two options:

  1. 1.Do you support the reunification of the Crimea with Russia as a subject of the Russian Federation?
  2. 2.Do you support the restoration of the Constitution of the Republic of Crimea of 1992 and the status of the Crimea as a part of Ukraine?

As can be gathered from this passage, the options with which the voters were presented were obviously limited. That is to say, the referendum in question did not take account of a third choice, namely, becoming an independent state. In the case concerning Northern Cameroons, the icj embarked on a situation of a rather similar nature, and noted that there were only two substantial and exclusive alternatives available to the participants:

The Court cannot blind its eyes to the indisputable fact that if the result of the plebiscite in the Northern Cameroons had not favoured joining the Federation of Nigeria, it would have favoured joining the Republic of Cameroon. No third choice was presented in the question framed by the General Assembly and no other alternative was contemporaneously discussed.85

Additionally, ‘free and genuine expression of the will of peoples concerned’ has been accentuated by the icj in the Western Sahara Advisory Opinion.86 Free and genuine expression of will of the people necessitates the freedom of expression of persons as well as the media. The hrc also asserts that:

[P]ersons entitled to vote must be free to vote for any candidate for election and for or against any proposal submitted to referendum or plebiscite, and free to support or to oppose government, without undue influence or coercion of any kind which may distort or inhibit the free expression of the elector’s will. Voters should be able to form opinions independently, free of violence or threat of violence, compulsion, inducement or manipulative interference of any kind.87

In the heavy presence of the pro-Russian troops in the arena in which the referendum took place, ascertaining a genuine and free expression of people’s opinion would become difficult enough to call into question the legality of the referendum process en bloc. This point can be driven home if one pays heed to the decision taken by the Mejlis of the Crimean Tatar People in boycotting the referendum. The Chairman of the Mejlis, Chubarov, stated that ‘in circumstances where the troops are on the streets, amid absolute full legal bacchanalia, the referendum, especially in the absence of legislation – these are actions to further destabilise the situation in Crimea’.88

Accordingly, it seems that neither the options offered in the referendum nor the circumstances in which the referendum was held could satisfy the requirements for the free and genuine expression of the will of people. Thus, the result of the referendum is not acceptable even in the eyes of international law.

5 Conclusion

The secession of Crimea from Ukraine and its subsequent integration with Russia gave rise to a host of interconnected questions under international law. One of the premises of this essay was to show that assessing the legality of secession and declaration of independence in Crimea cannot be made possible unless one breaks down the questions in Crimea into their constituent components. Accordingly, it was argued that assessing the legality of four areas is germane to concluding whether the secession of Crimea conformed to the rules and standards of international law. These four areas are as follows: 1) the legality of unilateral secession; 2) the legality of declaration of independence; 3) the legality of military intervention; and 4) the compatibility of the referendum held in Crimea with the standards of international law. It was seen that in all of these areas, the measures employed in Crimea fell a long way short of meeting international law standards. Without recalling the arguments made above, it suffices to say here that the case of Crimea is yet another testimony to the vulnerability of the concept of self-determination to politicisation. One may reasonably say that little can be done to reduce the political exploitation of the right to self-determination, for this represents an area in which international law is forced to be lumped together with politics. Yet, it has always been the classical trait of international law to advance objective legal thresholds of applicability and criteria to leave smaller spaces for subjective political drives to manipulate law. This is precisely what is needed in the case of setting the boundaries of the exercise of external self-determination. If viewed in this light, the icj’s judgment in the case of Kosovo can oddly be viewed as both progressive and extremely conservative.

The icj’s advisory opinion in the case of Kosovo is progressive in that making a distinction between the legality of a declaration of independence and the secession ensuing it makes it easier for a lawyer to divorce an act of secession from the formalities associated with a declaration of independence. Such was the approach taken by this piece towards the legality of secession and declaration of independence in Crimea. Without this approach, the most one could achieve was to point towards the illegality of secession in Crimea without addressing such essential features as the declaration of independence and the legality of the referendum held therein. At the same time, the advisory opinion of icj in Kosovo was extremely elusive, in that it left such vital issues as the permissibility of external self-determination out of its analysis. It seems that the international community as a whole needs a clearer understanding of the boundaries of the concept of self-determination. Once again, the wholesome misinterpretation and misuse of self-determination in Crimea does dictate an urgent need for more clarification in this area.

Even though the exercise of secession was underscored by sheer illegality, one must still fear the unwelcome precedent that Crimea may set in the future. For this reason alone, a continuous and substantive engagement with the issues associated with self-determination helps reduce the frightening possibilities that may arise from the political exploits made out of the selective invocation of the right to self-determination.

1 See, J. Crawford, ‘The Right to Self-Determination in International Law: Its Development and Future’, in P. Alston (ed.), Peoples’ Rights (Oxford University Press, Oxford, 2001); F. Kirgis, ‘The Degrees of Self-Determination in the United Nations Era’, 88 American Journal of International Law (1994) p. 304.

2 Human Rights Committee, General Comment No. 12: The right to self-determination of peoples (Art. 1), adopted on 13 March 1984, at para. 1, "The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights."

3 In fact, persistent confusion as to the meaning of the right to self-determination began with the drafting process of the Charter of United Nations. In this regard, Quane has provided an interesting report of the disagreements of delegates of different States on the meaning of self-determination: "The question of what self-determination entailed was the subject of some discussion in the co-ordination committee. The French delegate asked whether self-determination meant the right of a State to have its own democratic institutions or the right of secession. The British and Soviet Union delegates were reluctant to engage in a debate on the issue since they were not sure that there could be an agreement. While it was proposed that the matter could be discussed at a future date, there is no record of any such discussion taking place. This suggests that the divergence of the opinion which existed on the meaning of self-determination was not resolved during the drafting of the charter." H. Quane, ‘The United Nations and the Evolving Right to Self-Determination’, 47 International and Comparative Law Quarterly (1998) p. 561.

4 H. Hannum, Autonomy, Sovereignty, and Self-Determination (University of Pennsylvania Press, Philadelphia, 1990) p. 27.

5 As will be seen later in the essay, the issue of internal self-determination is also relevant when it comes to Crimea.

6 As a result, questions on matters such as the legality of removing the former President Yanukuvych somehow can be linked to discerning whether the secession in Crimea would conform to the rules of international law.

7 The Verkhovna Rada of Ukraine adopted the Resolution ‘On conferring powers of the President of Ukraine on the Chairman of the Verkhovna Rada according to article 112 of the Constitution of Ukraine’, <iportal.rada.gov.ua/en/news/page/news/News/News/88111.html>, visited on 1 March 2015.

8 Seebbc World News, Ukraine Crises, <www.bbc.com/news/world-middle-east-26248275>, visited on 12 March 2015.

9 The Council’s conclusions on Ukraine: <www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/foraff/141291.pdf>, visited on 5 March 2015. [Council, Conclusions].

10 See Judgment of the Constitutional Court of Ukraine on all-Crimean referendum, Case No. 1-13/2014, 14 March 2014 [the judgment of ccu].

11 <www.rada.crimea.ua/news/11_03_2014>, visited on 4 March 2015.

12 Russia Today, Sevastopol and Crimean parliament vote to join Russia, referendum to be held in 10 days,<rt.com/news/crimea-referendum-status-ukraine-154/>, visited on 28 March 2015.

13 Declaration of Independence of the Autonomous Republic of Crimea and Sevastopol, <www.voltairenet.org/article182723.html>, visited on 18 March 2015.

14 Ukraine Crises, supra note 8.

15 Verjhovna Rada of Ukraine, <iportal.rada.gov.ua/en/news/page/news/News/News/89664.html>, visited on 10 March 2015.

16 Russia Today, Crimea parliament declares independence from Ukraine ahead of referendum, <rt.com/news/crimea-parliament-independence-ukraine-086/>, visited on 21 March 2015.

17 bbc World News, Ukraine Crisis: Obama condemns Crimea referendum, <www.bbc.com/news/world-us-canada-26476623>, visited on 21 March 2015.

18 European Council, Joint Statement of Crimea by President of the European Council Herman Van Rompuy and President of the European Commission José Manuel Barroso, 16 March 2014, euco 58/14.

19 un ga/11493, 27 March 2014.

20 The judgment of ccu, supra note 10: Regardless of the decision and reasoning of the Constitutional Court of Ukraine, a vital point must not escape one’s attention, and that is, the independence of judges sitting in this Court. To elaborate on this, it must be said that 18 days before the decision of the Court, Parliament had adopted a resolution, which paved the way for the dismissal of twelve of the eighteen judges sitting in the Constitutional Court. This was to be done by the organs, which had appointed the judges. Five of the judges were dismissed by Parliament itself. Parliament recommended that the Acting President and the Congress of Judges consider dismissing the other seven judges on the ground that these judges had breached their professional oaths. On 13 March 2014, only one day before delivering its decision, Parliament appointed four new judges for the ccu, <www.ccu.gov.ua/en/publish/article/245487;jsessionid=73ad4585328A60121512276E33B1B5bb>, visited on 5 March 2015.

21 Judgment of ccu, supra note 10, para. 4.2.

22 Ibid.

23 Ibid., para. 4.5.

24 Ibid., para. 4.1.

25 Ibid., para. 4.4.

26 Ibid., para. 4.5.

27 It is noteworthy that the ‘European Commission for Democracy through Law’ promptly supported the decision of the Constitutional Court of Ukraine, and embarked on the importance of the principle of territorial integrity in most European constitutions. Opinion on ‘Whether the Decision Taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to Organise a Referendum on Becoming a Constituent Territory of the Russian Federation or Restoring Crimea’s 1992 Constitution is Compatible with Constitutional Principles.’ Opinion no. 762/2014.

28 Tatarstan case, 13 March 1992, Constitutional Court of the Russian Federation.

29 M. Suksi, ‘Keeping the Lid on the Secession Kettle – a Review of Legal Interpretations Concerning Claims of Self-Determination by Minority Populations’, 12 International Journal on Minority and Group Rights (2005) p. 212.

30 Interestingly though, the decision of the Constitutional Court of Russia in the case of Tatarstan was never implemented. Against the ruling of the Court, authorities in Tatarstan went on to hold a referendum. Meanwhile, the Russian authorities ignored the judgment of the Court in the hope that they would resolve the crisis of Tatarstan through political reconciliation. A. Trochev, Judging Russia: The Role of the Constitutional Court in Russian Politics 1990–2006, (Cambridge University Press, Cambridge, 2008) p. 196.

31 Suksi, supra note 29, p. 212.

32 Tomuschat writes in this regard, ‘if [States] fail to live up to their essential commitments they begin to lose their legitimacy and thus even their very existence can be called into question’. C. Tomuschat, ‘Self- Determination in a Post-Colonial World’, in C. Tomuschat (ed.), Modern Law and Self-Determination, (Martinus Nijhoff Publishers, Dordrecht, 1993) p. 16.

33 Reference re Secession of Quebec, 20 August 1998, Supreme Court of Canada [Quebec].

34 Ibid., para. 67.

35 Ibid., para. 68.

36 Ibid., para. 154. Notably, this conclusion on the exercise of external self-determination is also shared by human rights tribunals. In this regard, the African Commission of Human and Peoples’ Rights in the case of Kantangese posited: "[i]n the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article 13(1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire." Katangese Peoples’ Congress v. Zaire, 1995, African Commission on Human and People’s Rights, para. 6.

37 Ibid., para. 155.

38 It is interesting to note that since 1945, no State has gained recognition in the United Nations by an act of unilateral secession, unless the consent of the predecessor State has been expressed. J. Crawford, ‘Stare Practice and International Law in Relation to Unilateral Secession’ in A. F. Bayefsky (ed.), Self-Determination in International Law: Quebec and Lessons Learned (Martinus Nijhoff Publishers, Hague, 2000) 42.

39 Quebec, supra note 33, para. 122.

40 Another, more recent case concerning the legality of the declaration of sovereignty and the right of the People of Catalonia to decide on their independence as issued the Parliament of Catalonia was adjudged by the Spanish Constitutional Court. In this case too, any reference to the standards of international law on self-determination was omitted (though the Court in an elusive passage mentioned that the decision of the Supreme Court of Canada had been partly based on international law). In the same vein as the Russian and Canadian Courts, the Spanish Constitutional Court stipulated that sovereignty in the constitution of Spain is attributed to all Spanish people, and not a separate fragment of them identifying themselves as ‘the people of Catalonia’. In this case, the Court did not dismiss the legality of the declaration in question in its entirety. Rather, it only nullified those sections of the declaration, which entailed a recognition of sovereignty for Catalonia. Constitutional Court Judgment 42/2014, of 25 March 2014.

41 It is worth mentioning that the overwhelming majority of constitutions in the world do not recognise the legality of a unilateral secession. Charistakis has made an interesting inquiry into the stance of constitutions worldwide on the matter of unilateral secession, and writes, "Of 108 constitutions I have reviewed just two (Saint Christopher and Nevis of 1983 and Ethiopia of 1994) seem to recognise such a right of unilateral secession. More than 80 have wording showing that any unilateral attempt to secede should be deemed anti-constitutional, and some of them even provide for the State to adopt concrete measures to combat secessionist activities." T. Charistakis, ‘Self-Determination, Territorial Integrity and Fait Accompli in the Case of Crimea’, 75:1 Heidelberg Journal of International Law (2015) 75–100.

42 Declaration on Granting of Independence to Colonial Countries and Peoples, ga Res 1514 (xv), 14 December 1960.

43 Article 1(4), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 unts 3. The recognition of the right to self-determination by international humanitarian law (ihl) signifies one of the areas in which developments in international human rights law left a lasting mark on the field of ihl. Albeit temporarily, this was such a strong influence that Bowring writes, "That was the period, up to the collapse of the ussr, when the use of force by self-determination movements – National Liberation Movements – was not, as is so often the case today, characterised as terrorism." B. Bowring "Fragmentation, ‘Lex Specialis’ and the Tensions in the Jurisprudence of the European Court of Human Rights", 14 Journal of Conflict and Security Law (2015) p. 491.

44 The only exception to this seems to be the concept of ‘remedial secession’, which refers to the emergence of an external self-determination when the human rights of a given population have been violated in a flagrant and severe fashion. We will later elaborate on this concept in more detail. However, the concept of "remedial secession" itself has been free of neither opposition nor controversy in international law. See Charistakis, supra note 41.

45 Hannum, supra note 4, p. 47.

46 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 October 1970.

47 Ibid., para. 7.

48 E. Jiminez de Arechaga, ‘International Law in the Past Third of a Century’, 159 Recueil des cours (1978) p. 32.

49 See also, M. Suksi, ‘On Mechanisms of Decision-Making in the Creation (and the Re-Creation) of States – with Special Reference to the Relationship between the Right to Self-Determination, the Sovereignty of the People and the Pouvoir Constituant’, 3 Tidsskrift for Rettsvitenskap (1997) p. 426.

50 See M. Suksi, ‘Legal Foundations, Structures and Institutions of Autonomy’, in J. Oliveria and P. Cardinal (eds.), One Country, Two Systems, Three Legal Orders – Perspectives of Evolution (Springer, Berlin, 2009) p. 502.

51 Suksi, supra note 29, p. 203.

52 D. Raic, Statehood and the Law of Self-Determination (Kluwer Law International, Hague, 2002) p. 237.

53 W. W. Burke-White, ‘Crimea and the International Legal Order’, 6 Faculty Scholarship Paper (2014) p. 1360.

54 This is not intended to mean that the human rights of the inhabitants of Crimea were fully respected and ensured. Rather, it seems virtually impossible to say that there was a flagrant violation of human rights on the part of the Ukrainian government at the time when Crimea declared independence.

55 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 22 July 2010, icj, p. 403, para. 56. [Kosovo]

56 Ibid., para. 79.

57 Ibid., (emphasis added).

58 United Kingdom, Verbatim Record, cr 2009/32 (2009), p. 47.

59 Kosovo, supra note 55, para. 83.

60 As is clear from the advisory opinion of the icj in Kosovo, the manner in which the icj went about the issue of self-determination really had to do with the way that the question before the Court had been formulated. As Milanovic has forcefully argued, the particular manner of the question posed to the icj placed the issue before the Court outside the dilemma between the self-determination of people and the territorial integrity of States’. M. Milanovic, ‘Arguing the Kosovo Case’, in M. Milanovic and M. Wood (eds), The Law and Politics of the Kosovo Advisory Opinion (Oxford University Press, Oxford, 2014) p. 26.

61 It has been said that separating the declaration of independence from secession, and considering the two as separate issues, have been the weakest points of the icj’s opinion in Kosovo. As Burri writes, "Indeed, a declaration of independence in such a situation is the culmination of secession. It is the very act that symbolises secession. What else could be relevant for the principle of self‐determination, for secession, and for the territorial integrity of the State, if not the declaration of independence in the given case?" T. Burri, ‘The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links’, 11 German Law Journal (2010) p. 886.

62 Kosovo, supra note 55, para. 80 (emphasis added).

63 Address by the President of the Russian Federation, <eng.kremlin.ru/news/6889>, visited on 3 April 2015.

64 Declaration [Judge Simma] and Separate Opinion [Judge Yusuf], Kosovo, Advisory Opinion, icj Reports 2010. Judge Yusuf clearly remarked that "[t]he Court could have used this opportunity to clarify the scope and normative contents of the right to self-determination, in its post-colonial conception".

65 See, A. Peters, ‘Kosovo Precedent’, in Marko Milanovic and Michael Wood (eds.), The Law and Politics of the Kosovo Advisory Opinion (Oxford University Press, Oxford, 2014).

66 Kosovo, supra note 55, para. 81, (emphasis added).

67 Ibid.

68 Council, Conclusions, supra note 9.

69 un Doc. S/res/216 (12 November 1965), para. 1.

70 See A. Deeks, ‘Russia in Ukraine: A Reader Responds, <www.lawfareblog.com/2014/03/russia-in-ukraine-a-reader-responds>, visited on 4 April 2015.

71 Security Council Meeting, 3 March 2014, sc/11305, p. 3. Interestingly, Yanukovych later regretted this act and characterised his invitation of Russia as a ‘mistake’. M. Milanovic, ‘Yanukovych confirms he invited Russian intervention,’ <www.ejiltalk.org/yanukovych-confirms-he-invited-russian-intervention>, visited on 25 March 2015.

72 Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986, icj Reports, para. 246 (emphasis added).

73 According to Article 108, the grounds of termination of powers of the President prior to the expiration of the presidential term are confined to such cases as resignation, inability to exercise presidential duties for reasons of health, removal from office by the procedure of impeachment, which needs to be reviewed by the Constitutional Court of Ukraine according to Article 111 of the Constitution, and finally, death. In the case of the crisis of 2014, the only possible ground for the removal of the former President Yanukovych could be impeachment. However, Article 111 obliges Parliament to establish a special investigatory commission to formulate charges against the President, establish some evidence to justify the charges and make a final submission about the President’s guilt to Parliament to consider. In addition, it requires the Constitutional Court of Ukraine to review the case and certify that the constitutional procedure of investigation and consideration has been followed. Thereafter, the Supreme Court of Ukraine must certify that the acts of which the President is accused cannot but deserve impeachment. The Ukrainian Parliament did not observe this procedure. Furthermore, a resolution on impeachment shall be adopted by no less than three-quarters of its constitutional composition in Parliament. The Ukrainian Parliament voted by 328 votes to impeach President Yanukovych. However, for an effective impeachment under constitutional rules, the 449–seated mps would have needed 337 votes to remove Yanukovych from office.

74 For an opposite view on this issue see D. Wisehart, ‘The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention?’, <www.ejiltalk.org/the-crisis-in-ukraine-and-the-prohibition-of-the-use-of-force-a-legal-basis-for-russias-intervention/#more-10459>, visited on 1 March 2015.

75 Even taking account of the unlikely possibility that Russia could, upon the invitation of the former President Yanukovych, enter Ukraine militarily, an argument can be made as to how faithful Russia remained to the mandate it was given by Yanukovych. It is one thing to stabilise the security and public order of a given State, and quite another to hold a referendum in that State to annex a part of its territory to the intervening State. Did Russia as an occupying power have a right to hold referendum in one part of Ukraine? If not, does such an obvious breach of its obligation not call the legality of its intervention into question ab initio? These are issues whose consideration goes beyond the scope of this essay, but they all signify complex and lively questions in international law.

76 Max Planck Encyclopedia of Public International Law [mpepil], ‘Intervention by Invitation’, <opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1702#law-9780199231690-e1702-div2-6>, visited on 9 March 2015.

77 See, L. Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’, 56 British Yearbook of International Law (1985) p. 89.

78 G. Vaypan, ‘(Un)Invited Guests: The Validity of Russia’s Argument on Intervention by Invitation’, <cjicl.org.uk/2014/03/05/uninvited-guests-validity-russias-argument-intervention-invitation>, visited on 27 March 2015.

79 Security Council Meeting (3 March 2014), S/pv.7125, p. 16.

80 See also International Bar Association, ‘iba calls for independent investigation into Russia’s military intervention in Crimea amid violation of the un Charter’, <www.ibanet.org/Article/Detail.aspx?ArticleUid=32489a5b-a540-40aa-90c9-c511520e27be>, visited on 13 March 2015.

81 Another more recent crisis in which the effects of the ambiguity of the theories justifying a military intervention upon invitation can be seen is the Saudi-led strikes against Houthis in Yemen. The military campaign led by Saudi Arabia against Yemen began in March 2015 at the request of the ousted President Hadi. Despite the broad coverage of this crisis in media, there seems to be virtually no discussion on the legality of the Saudi-led (so far) air strikes referred to as the ‘Operation Decisive Storm’. Both under the ‘effective control’ theory and ‘popular sovereign’ doctrine, justifying the air strikes against Yemen may epitomise a very difficult task. The silence of the Security Council on the issue may be said to affirm the legality of these attacks. However, this cannot be taken as a serious legal argument since the same logic can be employed to point to the situational inattention of the Security Council to international law. Besides, the Operation Decisive Storm was condemned and criticised by the European Union, though not precisely on the point of law. The following are some of the questions which come to mind as for the conditions justifying an intervention upon invitation: what amount of control can be said to meet the threshold of a minimum degree of effectiveness? Can an administration which has lost all of its power bases but a city, say, the capital, be said to exercise effective authority? Can the ‘popular sovereign’ doctrine be invoked in a divided State in the middle of a closely-fought civil war? What about the role of State’s constitutions in the middle of constitutional crises? These are some of the questions which may merit more attention on the part of international legal scholars for reconfiguring or amending the threshold of legality for military interventions upon invitation. For the opinion of the European Union and some other States on the crisis of Yemen, see, Aljazeera, ʻIran warns of bloodshed as Saudi-led forces bomb Yemenʼ,

<www.aljazeera.com/news/2015/03/iran-warns-bloodshed-saudi-led-forces-bomb-yemen-150326103728438.html>, visited on 21 March 2015.

82 It has been said that internal self-determination possesses three layers: "1) the (construed) right of the people to constitute its own political system (pouvoir constitutant) … 2) the right of the people to have a say in amending the constitution … 3) the right of the people to take part in the conduct of public affairs […]" A. Rosas, ‘Internal Self-determination’ in C. Tamuschat (ed.), Modern Law and Self-Determination (Martinus Nijhoff Publishers, The Hague, 1993) p. 249.

83 Suksi, supra note 50, p. 430.

84 un Human Rights Committee, ccpr General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July 1996, ccpr/C/21/Rev.1/Add.7.

85 Case concerning the Northern Cameroon (Cameroon v. United Kingdom), 2 December 1963, icj Reports, Judgment, para. 15.

86 Western Sahara, 16 October 1975, icj Reports, Advisory Opinion.

87 un Human Rights Committee (hrc), ccpr General Comment No. 25, supra note 84, para. 19.

88 Mejlis to boycott Crimean referendum, <www.ukrinform.ua/eng/news/mejlis_to_boycott_crimean_referendum_318219>, visited on 10 March 2015.

  • 14

    Ukraine Crises, supra note 8.

  • 31

    Suksi, supra note 29, p. 212.

  • 45

    Hannum, supra note 4, p. 47.

  • 51

    Suksi, supra note 29, p. 203.

  • 83

    Suksi, supra note 50, p. 430.

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