The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are both introduced with articles on the right to self-determination. The principle of self-determination as jus cogens or an indisputable norm in international law nevertheless remains ambiguous, particularly relating to the legality behind the principle within the context of contemporary international life. The development of the principle was initially intended on overcoming the human rights impact colonialism had on those subjected to its authority in addition to the impact of decolonisation and post-colonialism had to international stability, economic relations and security as clearly stated in General Assembly Resolution 1514. What is the relationship or distinction between State and Government and does the state itself possess the qualifications as embodied by the Montevideo Convention on the Rights and Duties of States if indeed such qualifications epitomise a universal model of statehood and autonomy? This intricacy is further debilitated when entrenched with ideological discourse as a tool to construct hegemonic regimes rather than adhering to the constitutive conditions within international public law. This complexity is undoubtedly exposed with the annexation of Crimea [territory of the Ukraine] by Russian authorities, undermining the regulations of the United Nations Charter and of jus ad bellum or the criteria that determines the legality of warfare and the use of force, along with the prohibitions and the application of self-determination contained by the authority of international law. From the ousting of Viktor Yanukovych in Ukraine, to the referendum in Crimea that seemingly found the majority of the population in favour of becoming subjects of Russia, to the eventual deployment of Russian military personnel and annexation of the region with the intent of protecting its subjects from pro-Ukrainian extremists, is there a breach of Russia’ international obligations or is there credibility that can be considered legally tenable? It is the intention of this blog post on this gorgeous albeit cold Sunday afternoon to focus on the situation in Crimea by ascertaining Russia’ legal obligations regarding territorial integrity along with use of force, utilising a comparative approach on Kosovo and the Former Yugoslavia to ascertain the meaning of self-determination in international public law.
The principle of self-determination in international law embodies various doctrines such as sovereignty, statehood, territorial integrity and a number of other principles that negotiate and regulate the practice of international relations between existing and emerging nation-states. The onslaught of the first half of the twentieth century necessitated international corporation to prevent any repetition of violence, annexation or conquests and thus the development of the United Nations as an international body to deliver such measures and regulations was established. Notwithstanding the original and albeit failed attempt to institute the conditions that encourage peaceful, secure relations through the League of Nations, the United Nations with its principle organs has successfully delegated compulsory resolutions with the intent of managing and recommending international peace and cooperation. The problem of effectiveness of enforcing international law, however, remains questionable though enforcement mechanisms that negotiate sustainable processes or sanctions to safeguard human rights principles that encourage changes to domestic laws and other initiatives that bind international law into constitutive characteristics and customary principles is gaining strength. “Nevertheless, there remains vast domains in which the central enforcement of international law is largely non-existent or, at best, sporadic.” A clear example of this failure can be seen with the collapse of Yugoslavia during the last decade of the twentieth century, whereby notoriety of the UN Peacekeepers failing to protect the safe areas of Srebrenica ultimately led to the massacre of thousands of Bosniak boys and men.
The transition of the former Yugoslavia – contained by six socialist republics and two autonomous provinces of Kosovo and Vojvodina – has since exposed the miscarriage of international organisations to manage adequate responses to emergency situations, becoming the stimulus to modify and enhance the mechanisms that define and regulate the substantive criteria of the principle of self-determination and the conditions that define statehood. One particular aspect of this relies on the concept of territorial integrity and the modalities that outline the legal characteristics between dissolution and succession. According to the Montevideo Convention on the Rights and Duties of States 1933, a treaty that attempts to elucidate the general requirements within customary international law vis-à-vis statehood – the norms and exceptions of what frameworks self-determination, sovereignty and statehood – purports that a state as a person of international law should possess the qualification of a defined territory. “[A] state is defined as an entity with a defined territory and a permanent population under the control of its own government, which as the capacity to engage in diplomatic relations with other states.” Territorial integrity is contained in Article 2(4) of the UN Charter along with Principle IV (Territorial Integrity of States) of the Helsinki Final Act (1975) along with a number of bi- and multilateral agreements that declares duties including non-recognition of territorial acquisitions or special advantages obtained by force. Recognition as a criteria for statehood, the latter being the “plenary competence to perform acts, make treaties, and so on, in the international sphere,” that is sovereignty within a defined territory is legitimate when founded on the evidential criteria as inferred within international law. Northern Cyprus, for instance, is recognised by the United Nations as territory under occupation and an infringement of Cypriot sovereignty and conversely, the controversy regarding the unilateral declaration of independence of Kosovo from Serbia has raised a plethora of questions as to the legal precedent it has set particularly for the criteria of self-determination and de-jure recognition.
The lack of clarity regarding self-determination and the UN Charter invoked the Council of the European Union to establish an Arbitration Committee with Robert Batinter as president to answer pressing legal questions on subjects of concern related to the situation and ethnic violence advancing in Yugoslavia at the time, namely to be a source of guidelines vis-à-vis the establishment of new States in Europe. Opinions that were put forward to the Commission following an initial request made by Lord Carrington on the subject of secession on the Social Federative Republic of Yugoslavia, for which the Commission concluded that Yugoslavia was in the process of dissolution. This led to two vital opinions – for the intention of this subject – namely that of self-determination and the subject of borders. The determination of boundaries during the dissolution of the former Yugoslavia found the committee purporting through Opinion No. 3 of whether internal boundaries within the Former Yugoslavia are to be regarded as borders in public international law, the Commission responded purporting that whilst the external borders remained within the international principle of uti possidetis pursuant to the UN Charter and the Helsinki Accords – the latter being the inviolability of national borders vis-à-vis territorial integrity – internal borders were vindicated by the Constitution of the Socialist Federal Republic of Yugoslavia 1974. “Article 5 requires the consent of all republics and provinces before the borders of Yugoslavia can be altered,” which, during a period of conflict and dissolution is complex. Jurisdictionally, the consequences of the opinions by the Arbitration Committee proved a failure to ascertain the ultimate consequences the subject of international borders along nationalist or ideological can have to the security and safety of minorities. According to Peter Ragan, on closer inspection particularly following Opinion 11 of the Reports the Badinter Borders Principle should have been flexible enough to accommodate the impulse for secession rooted in ideological grounds and therefore more sophisticated measures could have prevented the likelihood of ethnic violence considering the lack of national homogeneity.
“The case of a multinational unit within a federation in which a majority national group resolves that the federal unit will secede, recognition of that unit within existing federal borders is, on the evidence of the secessions and recognition of Croatia and Bosnia-Hercegovina, likely to facilitate violent ‘ethnic cleansing’. The result will be either a nationally homogeneous state, or a de facto partition of the state along national lines. Croatia serves as an example of the former and Bosnia-Hercegovina is an example of the latter. The consequences of applying the Badinter Borders Principle were disastrous for the SFRY.”
It is perhaps essential to comparatively analyse ‘remedial secession’ under international law and its similarities or differences with the right to self-determination, namely the challenge of territorial integrity and the fragmentation of existing States vis-à-vis minority groups or peoples exercising their right to self-determination. International customary law on territorial integrity is reflected in the UN Charter however GA Res 1541/1960, whilst elucidating outcomes relating to self-determination purported that integration with another state is a rightful part of the application of self-determination. “Secession is the process by which a particular group seeks to separate itself from the State to which it belongs.” Accordingly, Crimean and Russian authorities allege themselves legally justified for claiming the right to secession following the referendum that found the majority voting in favour of becoming subject to Russian federal authority whilst the international community view it as an “illegal annexation that followed Russia’s use of force in contravention of international law.” International case law confirms that an adequate application of the principle of self-determination requires a democratic plebiscite or referendum. Nevertheless, according to domestic Ukrainian law, the referendum held in Crimea was illegal; that whilst the autonomous status of Crimea provides administrative independence and the capacity to hold referendums but only so related to domestic matters. The Constitution of Ukraine clearly states that territory of Ukraine “within its present border is indivisible and inviolable” with Crimea an inseparable part or constituent. Thus, a legal referendum would require a plebiscite involving all of Ukrainian territory, including Ukraine, and not just Crimea. In addition, regulations on how a referendum is to be held, particularly relating to the use of force whereby the presence of Russian military and control of public infrastructure during the plebiscite along with the language or wording of the question that ensures clarity to answer a mere ‘yes’ or ‘no’ was not correctly adhered to, particularly since the referendum asked two questions in breach of Venice Commission’s Code of Good Practice.
I am not sure how you are supposed to answer ‘yes’ or ‘no’ to the following?
- Are you in favour of the Autonomous Republic of Crimea reuniting with Russia as a constituent part of the Russian Federation? or
- Are you in favour of restoring the Constitution of the Republic of Crimea of 1992 and of Crimea’s status as part of Ukraine?”
The Russian authorities, in an attempt to justify the occupation of Crimea, claim the declaration of independence by Kosovo has set a legal precedent, confirmed during the Crimean proclamation of independence from the Ukraine in 2014, whereby “Putin referred to numerous Western states, which had recognised Kosovo’s right to self-determination… Putin presented a moral argument claiming that the same rights could not be denied to the people of Crimea.” It is true that the International Court of Justice decision pertaining to Kosovo failed to adequately address the question of secession and the consequences of the declaration of independence from Serbia instead “limited the scope of its opinion to the question of whether the declaration as such violated international law.” Many countries including Spain decidedly chose to not recognise Kosovo since it was clear that there existed a failure to reach an agreement followed by a U.N. Security Council resolution, which is a requirement for secession. Nevertheless, the ICJ clearly outlined the required processes vis-à-vis the legality and practice of independence with regards to international law. Acting Minister for Foreign Affairs of Ukraine Andrii Deshchytsia introduced a draft resolution recounting the referendum held in Crimea along with territorial integrity, whereby the referendum was officially declared by the United Nations to be invalid. The Declaration on Principles of International Law concerning Friendly Relations and Cooperation claims that “territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter.”
Historically, Crimea is known to be the hub of the White Army [anti-Bolshevik] during the Russian Revolution, where it retreated under the leadership of General Baron Peter Wrangel with the intent on developing a counteroffensive to defeat the onslaught of the Red Army [Bolsheviks] in 1920; by 1921 following orders by Vladimir Lenin, tens of thousands of adherents of the White Movement that failed to escape Crimea to Istanbul or Europe were summarily executed without trial in what became known as the Red Terror. During this period, the Soviet government created Crimean Autonomous Soviet Socialist Republic (ASSR) and additionally promoted the national identity of the indigenous Crimean Tatars as they had served the Red Army and played an role in their victory. This was swiftly reversed during the Stalinist era that ordered the mass deportation of the Crimean Tatars among other nationalities from the country to labour camps for allegedly collaborating with the German Nazis, whereby during World War Two the Nazi regime successfully captured the region of Sevastopol until 1945, where the Soviet Union reclaimed and transferred it as the Crimean Region of the USSR from the original ASSR and downgrading it to an administrative division or oblast.
By 1954, however, the Soviet Union under the leadership of Nikita Khrushchev issued a decree to transfer Crimea to the then Soviet Ukraine and legalised by the USSR Parliament, claiming that territorial proximity along with a moral gesture to celebrate strong cultural ties purposed the transfer. “Article 77 of the 1978 Ukrainian SSR Constitution placed the Crimea and the two cities of Sevastopol and Kyiv under Soviet Ukrainian Republican jurisdiction.” Notwithstanding any alleged political machinations by Khrushchev at the time that ultimately resulted in the Crimean transfer, the intention was to normalise and promote friendly relations analogous to the principles of international law in accordance with the Charter of the United Nations. The transfer was legally instituted in the then USSR Parliament despite allegations – as seen in the Crimean speech by Vladimir Putin in 2014 – that the circumstance determining the transfer was a personal initiative or mere formality rather than legally pertinent. “Any allegations that the transfer of the Crimean peninsula to the Ukrainian SSR was conducted in breach of the constitutional law of the USSR appear to be baseless after a study of the legal procedures followed in 1954.” Russia has argued that the transfer itself was illegitimate not simply relating to the city of Sevastopol that it claims has since 1948 never been part of the Crimean region, but namely that it defied the USSR constitution and thus the transfer remains null and void. The attempt to determine a violation of legal procedures as applied by the Presidium of the Supreme Council in the Russian SFSR that approved the transfer of Crimea is substantiated by the view that the Presidium– consisting of 27 members and the highest authority at the time – only received 13 votes. “The Supreme Council did approve the transfer by unanimous vote, but it did so without a quorum present,” however the other 14 voters were merely absent and thus no procedural breach occurred. Thus the amendments to Articles 22 and 23 of the Constitution of the USSR whereby the Crimean region was deleted from the former article with further amendments to ensure full jurisdiction of Crimea by the Ukraine remains legal.
The attacks against the legitimacy of the transfer of Crimea to Ukraine appear to be a smokescreen in an attempt to justify the legality of the occupation. This occupation was many years in the making and the internal conflicts within Ukraine established a chain of events that found both Crimean and Russian authorities encourage and eventually hold a referendum fashioned with problems that determined whether Crimean territory would be absorbed by Russia. Prior to the referendum, there were doubts as to the influence of Russia on Ukrainian political affairs, with increased tension following former president Viktor Yanukovych suspending original plans to sign an EU trade agreement. “Ukrainian president Viktor Yanukovych, who was due to formally sign his country’s agreement with the EU, had a last minute change of heart.” In addition, the response to peaceful pro-EU protests held at Independence Square – known as the Euromaiden – in Kiev, whereby riot police attacked protestors leading to mass demonstrations throughout the country only worsened when parliament overstepped its legislative powers by changing the laws of association. The pejorative of the anti-protest laws was to restrict freedoms of association and speech that only increased the tension of protestors, leading to several deaths and street clashes with police and ultimately forcing pro-Russian Prime Minister Mykola Azarov to resign following comments labelling the actions of protestors as ‘Nazi’ behaviour. Regarding the latter, the suspicions of Ukrainian civil society was embellished earlier with developments of a language policy that attempted to change laws making Russian the second official language – the law later abolished – with comments from Azarov claiming Ukrainian is a ‘little Russian language’ that merely sparked controversy particularly to where his loyalty lied.
The subject of self-determination in international law is wrought with complications, primarily because of its incredibly close relationship with politics. Whilst there remains no universally accepted definition of statehood, the International Law Commission did attempt to codify the theory of recognition vis-à-vis statehood, namely: “The political existence of the State is independent of its recognition by other States. Even before it has been recognized, the State has the right to defend its integrity and independence, to provide for its preservation and prosperity, and, consequently, to organize itself as it sees fit, to legislate in regard to its interests, to administer its services and to determine the jurisdiction and competence of its courts of justice.” This broad draft proposal was rejected as it was grounded in ambiguity that it could in the context of international law contain political repercussions. The dichotomy between constitutive and declaratory approaches, namely that of recognition or that of meeting the legal criteria for statehood, only adds to the complication. It is clear that those territories experiencing decolonisation contain challenges particularly related to self-determination, with cultural divides and unstable political systems [it has been noted that democracy is not a static event but a political process that is developed over a period of time] confirming that a salient transition to independence is inhibited. The Declaration on the Granting of Independence to Colonial Countries and Peoples itself proved conscious of the conditions that the process of civic liberation could threaten peace; “[a] ware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitute a serious threat to world peace.”
I find it useful ending this post with:
“Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”