Crimea’s secession from Ukraine: illegal but legitimate?

The Crimean parliament’s unilateral decision to declare independence from Ukraine and seek accession to the Russian Federation has been backed up by a Soviet-style 96,77% of those Crimeans voting (on a turnout of 83%) in the March 16th referendum. Russian President Vladimir Putin has not yet formally declared his intention to annex the territory but the Kremlin has nevertheless announced that the will of the Crimean people to determine its own destiny should be respected. Putin has told US President Obama that the referendum in Crimea was legal and cited the independence of Kosovo — which, ironically, Russia has not recognised — as the precedent for Crimea’s secession.

The parallel with Kosovo had already been categorically rejected by German Chancellor Angela Merkel, who emphasised the uniqueness of the Kosovo case. Indeed, Kosovo suffered from the colonisation and war inflicted upon it by the Milosevic regime; the UN Security Council mandated an end to the crisis; and more than 10 years of international governance preceded a declaration of independence.

There is more legal rhetoric in the midst of the political crisis in Ukraine.

The US and the EU have condemned Russia’s military moves in Crimea and the backing of the local referendum. President Obama stressed that the Crimean referendum, which violated the Ukrainian Constitution and international law and occurred under duress of Russian military intervention, would never be recognised by the United States and the international community. In a joint communiqué, European Council President Herman Van Rompuy and European Commission President José Manuel Barroso recalled the statement by all 28 EU Heads of State or Government on March 6th that the referendum is contrary to the Ukrainian Constitution and international law and that its outcome will not be recognised.

Arguably, the legal issue here is one of Ukrainian constitutional law more than of international law.

Under international law, it cannot seriously be argued that secession is prohibited. Conversely, it cannot be denied that secession is permitted. In its 2010 Advisory Opinion on the legality of Kosovo’s unilateral declaration of independence, the International Court of Justice dodged the question whether there exists an international right of secession and instead framed the legal issue as one of domestic law.

While international law does not grant a right of secession, the tradition of state and court practice nevertheless provides a frame within which certain secessionist acts are deemed legitimate, depending on the facts. As noted in a report from the Association of the Bar of the City of New York on the legal aspects of the separatist crisis in Moldova, the key established by international practice is to assess whether or not a crisis meets the three criteria for the legitimation of secession: (i) the secessionists are a "people" (in the ethnographic sense); (ii) the state from which they are seceding seriously violates their human rights; and (iii) there are no other effective remedies under either domestic law or international law.

The secession by Crimea fails on all three counts and can thus not be legitimised.

Ad (i):  There is no “Crimean people” with a right to external self-determination (i.e. secession) while excluding the Crimean Tatars (12% of the peninsula’s population at the last census) and ethnic Ukrainians (who make up another 24%).The Crimean Tatars have a long-standing claim for recognition as the indigenous people in Crimea and have actively campaigned for this in the UN and Council of Europe. In August 1944, they suffered mass deportation to Central Asia, due to which an estimated 46% died. They have a large diaspora in Turkey too. If Crimea were to accede to the Russian Federation, then Russia would be facing all sorts of intersecting self-determination claims.

Ad (ii): Claims that Russian Crimeans were the victims of persecution, gross and persistent human rights violations committed by the Ukrainian authorities, are machinations of Russian propaganda and cannot be factually substantiated.

Ad (iii): Crimeans enjoyed the right to internal self-determination, i.e. meaningful political participation and the pursuit of economic, social and cultural development within the unitary state of Ukraine. In fact, the “Autonomous Republic of Crimea” was created in the 1996 Constitution of Ukraine and effectively headed off Russian irredentism by giving Russians substantial linguistic rights and other privileges. Nowhere does the Ukrainian Constitution confer the competence to the parliament or population of Crimea to secede. What’s more, Article 1 of the Constitution of the Autonomous Republic of Crimea defers to the Ukrainian Constitution by stating that Crimea “shall be an integral part of Ukraine and [that] it shall solve, within the powers conferred upon it by the Constitution of Ukraine, any and all matters coming within its terms of reference.”

The latter ‘federal’ construct reflects the position of sovereign states that wish not to be torn apart by a local referendum and/or external military intervention. Russia too has its own autonomous regions and republics. Yet, nothing indicates that the Kremlin believes that, under Russian constitutional law, those entities can voluntarily secede from Russia. The suppression of such claims in the North Caucasus are cases in point.