On March 16, over 95 percent of voters in Crimea backed a plan to secede Ukraine and join Russia. In a call to Russian President Vladimir Putin, President Obama said that the secession vote “would never be recognized” by the United States, and urged Putin to pursue a diplomatic de-escalation of the crisis. Putin defended Sunday’s vote, with state-run Itar-Tass news agency reporting that he called the referendum “in compliance with the norms of international law, in particular with Article 1 of the UN Charter that stipulates the principle of equality and self-determination of peoples.”
The legal question of whether Crimea can secede by referendum is really one of Ukrainian constitutional law than of international law. With regard to Ukrainian law, there is no mention of secession by act of regional parliament or by local referendum under the Ukrainian Constitution. Title X of the Ukrainian Constitution concerns the Autonomous Republic of Crimea, and it does not confer the power to secede by referendum. It should be noted, however, that neither does the constitution permit the national parliament to peremptorily remove the president from office, as Ukrainian legislators purported to do with Victor Yanukovych last month.
As a side note, it is important to recognize that the term “autonomous republic” had a specific meaning in the old Soviet constitutional regime. The Soviet Union generally consisted of “union republics” and “autonomous republics.” Under Article 76 of the Constitution of the Soviet Union, a Union Republic was a “sovereign Soviet socialist state,” the highest form of sovereignty within the USSR. When the USSR dissolved, the Soviet Union Republics – like Russia, Georgia, and Ukraine – became new sovereign states. The autonomous republics – like Crimea – were subsidiary entities; they did not have the level of sovereignty granted to Union Republics.
Putting aside the Ukrainian law question, however, it is interesting that the Crimean referendum is being both condemned as a violation of international law by the international community, and at the same time justified under the international principle of self-determination, as Putin noted in his statement defending the Crimean referendum. Moscow’s international law arguments are largely a smokescreen, but they have been arguably enabled by the West’s own blurring of legal lines in the course of two decades of liberal interventionism.
It is generally understood that international law does not grant sub-state entities a right to secede from their parent states. By the same token, however, international law does not explicitly prohibit secession. Exceptions to this supposed neutrality arise from the international legal principles of self-determination, which enables a “people” to determine for themselves their political, economic, social and cultural status.
While the right of self-determination indisputably entitles colonized peoples to form states independent of their colonial rulers, in other contexts, the principle lends itself to restrictive or expansive interpretations. Some scholars argue that self-determination allows only for the creation of new states in the context of decolonization. Other scholars assert that the right of self-determination legally entitles peoples subject to persecution to remedy their situation through secession. What is clear, however, is that the collective rights to self-determination are only applicable to “peoples” as defined by international law.
The obvious question, therefore, is whether the inhabitants of Crimea are a “people.” Like the principle of self-determination itself, however, scholars differ as to what group constitutes a “people.” Marcelo Kohen, for example, argues that international law only permits one “people” to exist within the territory of a state. Minorities and indigenous populations, according to this theory, form part of the “people” itself, and more than one “people” can inhabit a state only if the state “defines itself as constituted by a plurality of peoples having the right to self-determination.” Other scholars, however, argue that many “peoples” may exist within the territory of a single state. The Canadian Supreme Court recently embraced this position, arguing that restricting the term “people” to the “population of existing states would render the granting of a right to self-determination largely duplicative.”
The latter view is more logical than the former. Defining “peoples” only by the territory in which they live is too restrictive. Under the broader view, it is certainly arguable that the people in Crimea have a distinct identify and territory. Therefore, it is not necessarily unlawful under international law for Crimea to hold a referendum and declare itself independent (or that it wishes to merge with Russia), as the International Court of Justice made clear in its (poorly reasoned) advisory opinion on the declaration of independence by Kosovo.
However, even if the inhabitants of Crimea are considered a “people,” a declaration of independence is not effective in international law by itself. Two factors are relevant here: the actions of the state within whose borders the people live and the response of the international community to the act of secession. With regard to the first factor, the Canadian Supreme Court found that a right to secession may arise “under the principle of self-determination of people at international law where ‘a people’ . . . is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.” In relation to the second factor, the response of the international community is significant in terms of the recognition (or not) of the seceding entity as an individual, sovereign state.
If the Crimean people are able freely to participate in governance and are not being oppressed as a group, then these actions of secession are not lawful. To date, there has been no evidence that the Ukrainian government has taken major military or other oppressive actions against the people of Crimea (or in other areas of Ukraine). There is no loss of legitimacy, and thus there is no action that would be sufficient to justify under international law any declaration of independence or merger with another state by the people of Crimea.
The Crimean referendum, therefore, has no international legal effect. Whether the people of Crimea are allowed internal self-determination is one for all the people of Crimea, not simply those who are of Russian heritage. And such a decision certainly should not be subject to military or other pressure by another state. If international security is to be maintained, it must be according to international law.