The right to self-determination - A case study of the Crimean secession.pdf

8/16/2019 The right to self-determination - A case study of the Crimean secession.pdf

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Table of content

Introduction ........................................................................................................................................... 3

1. Self-determination under international law .................................................................................... 6

1.1 Historical development .................................................................................................................. 6

1.2 Status and Scope in contemporary international law ..................................................................... 8

1.3 The „people‟ ................................................................................................................................ 12

1.4 Conclusion ................................................................................................................................... 13

2. The Crimean people and their right to self-determination .......................................................... 15

2.1 History of the Crimea and its population .................................................................................... 15

2.2 The Crimean „people‟ .................................................................................................................. 17

2.3 The exercise of self-determination by Crimea ............................................................................ 19

2.4 Conclusion ................................................................................................................................... 20

3. The secession and the role of Russia .............................................................................................. 22

3.1 The free expression of the will of the people .............................................................................. 22

3.2 Assistance from a third state........................................................................................................ 25

3.3 Conclusion ................................................................................................................................... 27

4. The territorial integrity of Ukraine ............................................................................................... 29

4.1 Territorial integrity and self-determination ................................................................................. 29

4.2 The Advisory Opinion on Kosovo by the International Court of Justice .................................... 32

4.3 Conclusion ................................................................................................................................... 33

5. The rights of others as a limitation to self-determination ............................................................ 35

5.1 The rights of Crimean Tatars ....................................................................................................... 35

5.2 Conclusion ................................................................................................................................... 39

Conclusion ............................................................................................................................................ 40

Bibliography ........................................................................................................................................ 44


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Introduction

At the moment I am starting to write this thesis, in February 2015, it has been almost exactly a year

since the events that became known as the Ukrainian Revolution of 2014 have transpired. The unrest

in Ukraine started in November 2013, when the former president Viktor Yanukovych chose an

economic deal with Russia over a deal with the European Union.1 The choice of the pro-Russian

Yanukovych sparked protest on Maidan (Independence Square) in the capital Kiev. 2 After

Yanukovych tried to quash these protests in a violent manner, the protest only spread and evolved into

a nationwide protest movement against the corruption that Yanukovych‟s government symbolized.3

Eventually the movement became a revolution in February 2014, when Yanukovych was more or less

forced to leave his office and flee.4 But this did not bring an end to the unrest. A counter-movement

that opposed the change of power in Kiev sprung up in Eastern Ukraine, the part of Ukraine that is

most oriented towards Russia.5 Now we are a year later and the eyes of the world mostly rest on the

provinces of Donetsk and Luhansk in the east of Ukraine, where the counter movement against the

Ukrainian Revolution has turned into a civil war between pro-Russian separatists and the Ukrainian

military.6 The Minsk II agreement, in which the fighting parties agreed on a truce and the moving of

heavy weaponry away from the frontline, has just been signed but the hostilities seem to continue.7

The ongoing violence in Eastern Ukraine almost seems to divert the attention away from the other

Ukrainian province that got heavily involved in the aftermath of the Ukrainian Revolution. This

province is the Autonomous Republic Crimea, located in the south of Ukraine on a peninsula

bordering the Black Sea. In late February 2014 pro-Russian gunmen seized important buildings in

Simferopol (the Crimean capital) and made changes in the composition of the Crimean parliament.8

1 Yuhas, A., „Ukraine crisis: an essential guide to everything that‟s happened so far‟, The Guardian, (13 April 2014),available at: http://www.theguardian.com/world/2014/apr/11/ukraine-russia-crimea-sanctions-us-eu-guide-explainer[accessed 29 May 2015]2 Yuhas, A., „Ukraine crisis: an essential guide to everything that‟s happened so far‟, The Guardian, (13 April 2014),available at: http://www.theguardian.com/world/2014/apr/11/ukraine-russia-crimea-sanctions-us-eu-guide-explainer

[accessed 29 May 2015]3 Yuhas, A., „Ukraine crisis: an essential guide to everything that‟s happened so far‟, The Guardian, (13 April 2014),

available at: http://www.theguardian.com/world/2014/apr/11/ukraine-russia-crimea-sanctions-us-eu-guide-explainer[accessed 29 May 2015]4 Higgins, A., „With President‟s Departure, Ukraine Looks Towards a Murky Future‟, New York Times, (22 February 2014),

available at: http://www.nytimes.com/2014/02/23/world/europe/with-presidents-departure-ukraine-looks-toward-a-murky-

future.html?action=click&contentCollection=Europe&module=RelatedCoverage&region=Marginalia&pgtype=article[accessed 29 May 2015]5 Yuhas, A., „Ukraine crisis: an essential guide to everything that‟s happened so far‟, The Guardian, (13 April 2014),available at: http://www.theguardian.com/world/2014/apr/11/ukraine-russia-crimea-sanctions-us-eu-guide-explainer[accessed 29 May 2015]6 BBC News, „Ukraine crisis in maps‟, (18 February 2015), available at: http://www.bbc.com/news/world-europe-27308526

[accessed 29 May 2015]7 BBC News, „Ukraine crisis: Leaders agree peace roadmap‟, (12 February 2015), available at:http://www.bbc.com/news/world-europe-31435812 [accessed 29 May 2015]8 Yuhas, A., „Ukraine crisis: an essential guide to everything that‟s happened so far‟, The Guardian, (13 April 2014),available at: http://www.theguardian.com/world/2014/apr/11/ukraine-russia-crimea-sanctions-us-eu-guide-explainer

[accessed 29 May 2015]


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This new parliament made an immediate impact on the future of the Crimea, through a vote to join

Russia and a call for a referendum on that subject, with corresponding claims by Crimea and Russia

that it is a legitimate exercise of their right to self-determination.9 After the referendum was held on 16

March 2014, the Crimean authorities declared their independence from Ukraine on 17 March 2014.10

That is where we arrive at the topic of this thesis. It is a case study on the right to self-

determination of Crimea. The aim is to research whether Crimea has a right to self-determination

under international law, and whether there is any legality in the Crimean secession from Ukraine,

based on the right to self-determination. The thesis consists of five chapters and a conclusion. The first

chapter is used to introduce the right to self-determination and its position in contemporary

international law. I describe the history of self-determination and how it has evolved from a political

principle into a right. I then continue to formulate its contemporary position, how self-determination

can be exercised and what the limitations on that exercise are. I finish the first chapter with an

elaboration on those that have the right to self-determination: the people. I describe how and when a

plurality of persons can be seen as a people. The second chapter will focus on Crimea. I start by

describing the history of the peninsula, and which consequences this history has for the composition of

the Crimean population. I then analyse whether the Crimean population can be seen as a people with a

right to self-determination. The last paragraph of the second chapter will focus on the inclination in

international law towards an internal exercise of self-determination, and which consequences this has

for the right to self-determination of Crimea and the way to exercise that right. This chapter will thus

ultimately answer whether Crimea has a right to self-determination under international law. The third,

fourth and fifth chapters are subsequently used to provide a more in-depth account of the separate

requirements and limitations of the right to self-determination which are already briefly described in

chapter one, and I interpret the Crimean secession in light of these requirements and limitations. The

third chapter will elaborate on the Crimean referendum and the rules that international law poses for

third-state assistance in the exercise of self-determination. This chapter is essentially an analysis of the

role that the Russian Federation has played in the Crimean secession. I start with the requirement that

self-determination should be exercised through the free and genuine expression of the will of the

people, and analyse whether the Crimean referendum of 16 March 2014, in which a large majoritychose to secede from Ukraine and become a part of the Russian Federation, fulfills this requirement.

Subsequently I will elaborate on the possibility for a people to receive third-state assistance in

exercising self-determination. Third-state assistance is bound to specific circumstances and it has

limitations, so an analysis of the Russian assistance to Crimea in light of these circumstances and

limitations will show whether that assistance was legitimate. The fourth chapter will show how the

Crimean secession should be seen in light of the principle of territorial integrity. I first elaborate on the

9 Baker, P., „Sovereignty vs. Self -Rule: Crimea Reignites Battle‟, New York Times, (8 March 2014), available at:

http://www.nytimes.com/2014/03/09/world/europe/crimea-crisis-revives-issue-of-secessions-legitimacy.html10 BBC News, „Crimean parliament formally applies to join Russia‟, (17 March 2014), available at:

http://www.bbc.com/news/world-europe-26609667 [accessed 30 May 2015]


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1. Self-determination under international law

Before, during and after the secession of the Crimea from Ukraine and its incorporation as a province

of the Russian Federation the parties who were in favour of this secession, the separatists in the

Crimea and the Russian Federation in particular, claimed that it was the right of the people of the

Crimea to choose for secession on the basis of their right to self-determination. They claim that the

referendum was a legitimate way of exercising the right to self-determination of peoples. In order to

determine if this claim is legitimate, it is necessary to explore the position and meaning of self-

determination under international law in this first chapter. The first paragraph of this chapter is used to

describe the historical development of self-determination. In the second paragraph the focus will be on

the status and scope of self-determination in modern international law, how it is exercised and what

the limitations on exercise are. The third paragraph of the chapter is aimed at describing those that

have the right to self-determination, the „people‟. This will provide an adequate overview on the right

to self-determination of peoples and its position in international law, which is necessary to properly

analyse the claims made by those who instigated, and are in favour of, the secession of the Crimea

from Ukraine and its incorporation into the Russian Federation.

1.1 Historical development

Even though the political principle of what we now call self-determination can be traced back far into

the history of mankind, as far back as the early stages of the institution of government according to

some,11 it is commonly accepted that the starting point for the development of the right to self-

determination into the principle it has now become was the French Revolution of 1789. This

revolution introduced a new collective right, namely the right of nations to rule over themselves and

thus to create new states out of the existing states.12 In the nineteenth century this idea of self-

determination was used by nationalist movements in Europe to overthrow foreign ruling dynasties

(like the Spanish Bourbons in Naples and Sicily) or to put together new, larger political entities (the

formation of the German Empire and the unification of Italy). These examples of the use of the

principle can thus be seen as national self-determination, or self-determination of the nation.13 The

transformation from the political national self-determination into the legal right to self-determination

of peoples started in the early twentieth century, when the first important references to the right to self-

determination in the Western World were made by Woodrow Wilson, President of the United States

11 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights Law, Second Edition, Oxford University Press, Oxford, 2014, p. 335.12 Pavković, A. and Radan, P., „In Pursuit Of Sovereignty And Self-Determination: Peoples, States And Secession In The

International Order‟, Macquarie Law Journal , Vol. 3, (2003), p. 1.13 McWhinney, E., Self-Determination of Peoples and Plural-Ethnic States in Contemporary International Law. Failed

States, Nation-building and the Alternative, Federal Option, Martinus Nijhoff Publishers, Leiden, 2007, pp. 1-2.


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from 1913 to 1921.14 He furthered the notion of the right to self-determination by warning statesmen

of the peril of ignoring that right.15

At about the same time that Wilson started his campaign to bring

the right to self-determination under the attention of the Western World at the end of World War I, the

Marxist ideas on national liberation took root in the USSR. The combined effect was that self-

determination, despite it still being a rather vague concept, became an accepted term of use in

international relations.16 However, it should be noted that self-determination was not recognised as a

general principle in the Covenant of the League of Nations.17

This means that even though the term

became accepted, it still did not have a legal foothold in international law. It was only after the end of

World War II that self-determination developed further, to gain a more prominent role in international

affairs as a legal norm.

In the UN Charter, signed in the summer of 1945 while the war was not even at its end, self-

determination is featured in the pur poses of the UN, in Article 1(2): “To develop friendly relations

among nations based on respect for the principle of equal rights and self-determination of peoples, and

to take other appropriate measures to strengthen universal peace”.18

This can be seen as the first true

recognition of self-determination in a major international document.19 It was also the first time that the

word „peoples‟ was used in association with self -determination.20

In the UN Charter it is also apparent

that self-determination was, at that time, seen first and foremost in relation to decolonisation. This is to

be deduced from its implied inclusion in Chapter XII on the Trusteeship System (designed for former

colonies), and especially in Article 76 (b) of the Charter, which declares as an objective of this

Trusteeship “to promote…progressive development towards self -government or independence as may

be appropriate to the particular circumstances of each territory and its peoples and the freely expressed

wishes of the peoples concerned”21

. And the colonial dominions also saw self-determination as a way

to free themselves from colonial rule, or as McWhinney puts it: “Self -determination of peoples

became the legal rubric in terms of which local, indigenous political movements in European Colonial

territories overseas sought to legitimate their claims for breakaway from the parent Imperial country

or, less than that, for autonomy and self-governance within those same states.”22 In the first decades of

14

Hanna, R.M., „Right to Self -Determination in In Re Secession of Quebec‟, Maryland Journal of International Law, Vol.23, Issue 1, (1999), p. 225.15 Castellino, J., „International Law and Self -Determination: Peoples, Indigenous Peoples, and Minorities‟, in: Walter, C., vonUngern-Sternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford UniversityPress, Oxford, 2014, p. 29.16 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights

Law, Second Edition, Oxford University Press, Oxford, 2014, p. 335.17 McWhinney, E., Self-Determination of Peoples and Plural-Ethnic States in Contemporary International Law: FailedStates, Nation-building and the Alternative, Federal Option, Martinus Nijhoff Publishers, Leiden, 2007, p. 3.18 United Nations, Charter of the United Nations, 24 October 1945, available at:http://www.un.org/en/documents/charter/index.shtml [accessed 3 March 2015], (emphasis added)19 Hannum, H., „Self -Determination in the Post-Colonial Era‟, in: Clark, D. and Williamson, R. (eds.), Self-Determination:

International Perspectives, Macmillan Press, London, 1996, p. 1720 Radan, P., The Break-up of Yugoslavia and International Law, Routledge, London and New York, 2002, p. 30.21 United Nations, Charter of the United Nations, 24 October 1945, available at:

http://www.un.org/en/documents/charter/index.shtml [accessed 3 March 2015]22 McWhinney, E., Self-Determination of Peoples and Plural-Ethnic States in Contemporary International Law. Failed

States, Nation-building and the Alternative, Federal Option, Martinus Nijhoff Publishers, Leiden, 2007, p. 2.


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its existence, the UN kept linking the right to self-determination to colonialism. This is demonstrated

by three important Resolutions of the UN General Assembly, which all feature self-determination in

the context of decolonization23

. In the 1960 Declaration on the Granting of Independence to Colonial

Countries and Peoples it is, for example, basically made clear that all colonial territories have the right

to independence, through the right to self-determination.24

During those years another important step in the development of the right to self-determination

was made when the transformation from a political principle into a legal norm was finally completed

with the incorporation of the right to self-determination as the first human right in the Covenants of

Human Rights in 1966.25 This, in combination with the aforementioned incorporation in the UN

Charter and UNGA Resolutions laid the foundation for the right to self-determination of all peoples in

contemporary international law. It was the first establishment of a universal right to self-determination

for all peoples26. In the decades that followed self-determination came to be seen more and more

separated from its colonial context. This can, for example, be observed in a declaration on the subject

by the Organisation of Security and Co-operation in Europe (OSCE) in which self-determination is

mentioned in conjunction with the right of „all peoples‟.27 It also became clear in state practice that the

right to self-determination was a not only a right in a colonial context. A significant example of the

universality of the right to self-determination in state practice is the unification of Germany in 1990.

When East- and West-Germany united, it was stated in a treaty that was signed by four of the five

permanent member of the UN Security Council that this was done through the exercise of self-

determination by the German people.28

Thus, the right to self-determination has developed from being

a political principle of national self-determination into a right to self-determination for colonial

peoples and finally into a universal right to self-determination for all peoples on the earth.

1.2 Status and Scope in contemporary international law

The legal definition of the right to self-determination as a human right can be found in the Common

Article 1 of the ICCPR and the ICESCR:

“1. All peoples have the right of self-determination. By virtue of that right they freely determine

their political status and freely pursue their economic, social and cultural development.

23 Declaration on the Granting of Independence to Colonial Countries and Peoples, UN GAOR 1514 (XV), 14 December

1960, A/RES/1514 (XV); UN GAOR 1541 (XV), 15 December 1960, A/RES/1541 (XV); Declaration on Principles ofInternational Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, UN GAOR 2625 (XXV), 24 October 1970, A/RES/2625 (XXV).24 Hannum, H., „Self -Determination in the Post-Colonial Era‟, in: Clark, D. and Williamson, R. (eds.), Self-Determination: International Perspectives, Macmillan Press, London, 1996, p. 17.25 Castellino, J., „International Law and Self -Determination: Peoples, Indigenous Peoples, and Minorities‟, in: Walter, C., von

Ungern-Sternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford UniversityPress, Oxford, 2014, p. 30.26 Radan, P., The Break-up of Yugoslavia and International Law, Routledge, London and New York, 2002, p. 45.27 Final Act of the Conference on Security and Co-operation in Europe (Helsinki Final Act), 1 August 1975, 14 ILM 1292,(1975), Principle VIII.28 Treaty on the Final Settlement With Respect to Germany, 12 September 1990, 29 ILM 1186, (1990), p. 1188.


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2. All peoples may, for their own ends, freely dispose of their natural wealth and resources

without prejudice to any obligations arising out of international economic co-operation, based

upon the principle of mutual benefit, and international law. In no case may a people be deprived

of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for theadministration of Non-Self-Governing and Trust Territories, shall promote the realization of the

right of self-determination, and shall respect that right, in conformity with the provisions of the

Charter of the United Nations.”29

In all subsequent international and regional human rights documents that contain a right to self-

determination the definition of Article 1(1) is largely repeated.30

The UN Human Rights Committee

(HRC) explained why the right to self-determination is placed in Article 1 of both the Covenants as

the first human right. It stated that: “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 and for the promotion and strengthening of those rights. It is for that reason that States…placed

this provision as article 1 apart from and before all of the other rights in the two Covenants.”31

This

comment by the HRC provides an insight in the importance of the right to self-determination in

contemporary international law, especially in relation to the ability to exercise other human rights. The

ICJ has subsequently declared that the right to self-determination is “one of the essential principles of

contemporary international law” and has “an erga omnes character”.32

The methods of exercising the right to self-determination are first found in the Declaration on

Principles of International Law, which provides: “The establishment of a sovereign and independent

State, the free association or integration with an independent State or the emergence into any other

political status freely determined by a people constitute modes of implementing the right of self-

determination by that people.”33

These exercises of self-determination can all be seen as forms of

external self-determination, because there has been a change not only in relation to the original state,

but also in relation to the international community.34

Self-determination can also be exercised by a

people without changing its external relationships; it can happen within the state. The Declaration on

Principles of International Law stipulates this internal form of self-determination as states being:“possessed of a government representing the whole people belonging to the territory without

29 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, UNTS, vol. 999, p. 171;UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS, vol.993, p. 330 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights Law, Second Edition, Oxford University Press, Oxford, 2014, p. 336.31 UN Human Rights Committee, CCPR General Comment 12, 13 March 1984, HRI/GEN/1/Rev.9 (Vol I) p. 183, para 1.32 Case Concerning East Timor (Portugal v. Australia), International Court of Justice (ICJ), 30 June 1995, I.C.J. Reports1995, p. 90, para 29.33 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance

with the Charter of the United Nations, UN GAOR 2625 (XXV), 24 October 1970, A/RES/2625 (XXV).34 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights

Law, Second Edition, Oxford University Press, Oxford, 2014, p. 342.


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distinction as to race, creed or colour.”35 Outside the colonial context, internal self-determination is the

way to go in the international community; it provides a far more pleasing solution for states then

endless claims to external forms of self-determination such as independence and secession.36

This

internal self-determination can take on many forms, ranging from forms of autonomy to federalist

constructions of states.37 While this is the preferred way of exercising self-determination, it does not

mean that external self-determination is not possible anymore. It may even prove to be necessary in

some cases to reach the goal of achieving self-determination.38

It is, however, by far not the first

option in situations where there is a claim for self-determination, or as the Canadian Supreme Court

stated it: “A right to external self-determination (which in this case potentially takes the form of the

assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then,

under carefully defined circumstances.”39

The exercise of the right to self-determination must happen

through the people themselves, or as the International Court of Justice stated: “the application of the

right of self-determination requires a free and genuine expression of the will of the peoples

concerned.”40

The normal way in which this can proceed is, of course, through general or special

elections, or possibly a referendum41.

In the exercise of the right to self-determination there are a number of limitations that are

recognised as such under international law. The first of these limitations is the rights of others. In

order to take into account the rights of other people, a people can be limited in its exercise of the right

to self-determination.42

An example of this limitation is given by the Canadian Supreme Court in a

case regarding the potential secession of the province of Québec from Canada (through the exercise of

the right to self-determination). In this case the Supreme Court took into account the rights of the

aboriginal peoples residing in the northern parts of the province and who, as indigenous peoples, also

have certain group rights which have to be taken into account when there would be an exercise of self-

determination.43

The second limitation to self-determination is territorial integrity. Territorial integrity,

which asserts that the territory of a state will not be altered without its consent, is based on keeping

international peace and security.44 It is one of the main principles of international law, enshrined in

35

Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordancewith the Charter of the United Nations, UN GAOR 2625 (XXV), 24 October 1970, A/RES/2625 (XXV).36 Oeter, S., „The Role of Recognition and Non-Recognition with Regard to Secession‟, in: Walter, C., von Ungern-Sternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University Press,Oxford, 2014, p. 56.37 Weller, M. „Settling Self -determination Conflicts: Recent Developments‟, EJIL, Vol. 20, No. 1, (2009), pp. 114-115.38 Hannum, H., „Self -Determination in the Post-Colonial Era‟, in: Clark, D. and Williamson, R. (eds.), Self-Determination: International Perspectives, Macmillan Press, London, 1996, p. 36.39 Canadian Supreme Court, Reference Re Secession of Québec, 20 August 1998, (1998) 2 S.C.R. 217, para 126.40 Western Sahara Advisory Opinion, International Court of Justice (ICJ), 16 October 1975, I.C.J. Reports 1975, p. 12, para55.41 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights

Law, Second Edition, Oxford University Press, Oxford, 2014, p. 344.42 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights Law, Second Edition, Oxford University Press, Oxford, 2014, p. 345.43 Canadian Supreme Court, Reference re Secession of Quebec, 20 August 1998, (1998) 2 S.C.R. 217, para 139.44 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights



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Article 2(4) of the UN Charter 45. This is the limitation that, under contemporary international law

blocks almost all claims of secession because they obviously violate this principle.46

The result of the

precedence of territorial integrity over self-determination is the legal assumption that self-

determination is bound in constructions of federation or autonomy.47

It is, however, argued that

territorial integrity can only be a legally justifiable limitation on the exercise of external self-

determination when a state already enables full internal self-determination for those people seeking

external self-determination.48

That would then be a case of the extreme situation, spoken about earlier

in this chapter, in which external self-determination would be allowed in certain circumstances and

where it would be the only option left. One last important limitation I would like to set out here is that

of use of force and support of third states. It is not unusual for situations in which peoples are seeking

to exercise their right to self-determination to involve the use of force, either by or against those

peoples. This limitation is made clear in the Declaration on Principles of International Law, which

provides that:

“Every State has the duty to refrain from any forcible action which deprives peoples referred to

above in the elaboration of the present principle of their right to self-determination and freedom and

independence. In their actions against, and resistance to, such forcible action in pursuit of the

exercise of their right to self-determination, such peoples are entitled to seek and to receive support

in accordance with the purposes and principles of the Charter”.49

What this part provides is that the peoples who seek to exercise their right to self-determination may

receive support from other states if forcible action is taken against them as a people, but this should be

in line with the purposes and principles of the UN Charter.50 This means that a state, in supporting

these peoples may for example not violate the territorial integrity or political independence of another

state, as proclaimed in Article 2(4) of the Charter.51

Or in other words, it may not send any troops to

occupy an area of another state in order to support a people in their exercise of the right to self-

determination. Thus, this is a limitation for third countries when supporting a people seeking self-

45 United Nations, Charter of the United Nations, 24 October 1945, available at:http://www.un.org/en/documents/charter/index.shtml [accessed 3 March 2015]46 Hanna, R.M., „Right to Self -Determination in In Re Secession of Quebec‟, Maryland Journal of International Law, Vol.

23, Issue 1, (1999), p. 230.47 Oeter, S., „The Role of Recognition and Non-Recognition with Regard to Secession‟, in: Walter, C., von Ungern-Sternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University Press,Oxford, 2014, p. 56.48 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights

Law, Second Edition, Oxford University Press, Oxford, 2014, p. 346.49 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordancewith the Charter of the United Nations, UN GAOR 2625 (XXV), 24 October 1970, A/RES/2625 (XXV).50 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights

Law, Second Edition, University Press, Oxford, 2014, p. 348.51 United Nations, Charter of the United Nations, 24 October 1945, available at:

http://www.un.org/en/documents/charter/index.shtml [accessed 3 March 2015]


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determination. These are three important limitations on the right to self-determination that need to be

considered when analysing a situation which involves the exercise of that right.

1.3 The ‘people’

It is thus established how the right to self-determination has evolved from political to legal principle

and from its colonial context into a universal right. It is also set out how it is exercised and what the

limitations on its exercise are. But who are those that have this right, what exactly is „a people‟? It is

not always readily apparent how the distinction should be made between „a people‟ with a right to

self-determination and similar groups, such as indigenous groups or minorities, who are not generally

seen as having that right.52

However, there are some that believe that, in certain circumstances,

national groups or minorities should be granted a right to self-determination and thus be looked at as

„a people‟ in this context.53 This means that there are many definitions given in this regard by expert

groups and scholars, but there is not one objective definition to be found in any of the international

legal instruments mentioned in this chapter, and there is, until this day no universal consensus on a

definition. A definition that comes closest to being accepted worldwide and that is often referred to is

that of an important group of UNESCO experts:

“1. A group of individual human beings who enjoy some or all of the following common features:

(a) a common historical tradition;

(b) racial or ethnic identity;

(c) cultural homogeneity;

(d) linguistic unity;

(e) religious or ideological affinity;

(f) territorial connection; and

(g) common economic life.

2. The group must be of a certain number who need not be large (e.g. the people of micro states) but

which must be more than a mere association of individuals within a state;

3. The group as a whole must have the will to be identified or consciousness as a people – allowing

that some groups or some members of such group, though sharing the foregoing characteristics,

may not have that will or consciousness; and possibly

4. The group must have institutions or other means of expressing its common characteristics and will

for identity.”54

This definition could be used to consider whether there is „a people‟ when the question inevitably rises

in a situation where the right to self-determination is claimed. But often it is not even needed to have a

52 Hannum, H., „Self -Determination in the Post-Colonial Era‟, in: Clark, D. and Williamson, R. (eds.), Self-Determination: International Perspectives, Macmillan Press, London, 1996, p. 27.53 Radan, P., The Break-up of Yugoslavia and International Law, Routledge, London and New York, 2002, pp. 10-11.54 Final Report and Recommendations of an International Meeting of Experts on the Further Study of the Concept of the

Right of People for UNESCO, 22 February 1990, SNS-89/CONF.602/7.


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definition that is generally agreed upon. Sometimes it is obvious that a certain group is „a people‟ with

a right to self-determination. This can be in cases where the constitution, legislation or practice of a

state indicates a specified group as „a people‟.55

So determining whether a certain group can be seen as

a people with a right to self-determination is really something that should be done on a case-by-case

basis, where attention should first go to establishing if there is any mention or treatment of a specific

group as a distinct people in official documents or state practice. If this is not the case, the UNESCO

definition may provide a useful insight.

1.4 Conclusion

The right to self-determination of peoples in contemporary international law has been developed out of

the notion of national self-determination created in Europe through the French Revolution. This

national self-determination inspired nationalist movements throughout the nineteenth and the

beginning of the twentieth century. After World War II it evolved into a right to self-determination of

peoples in a colonial context. The importance of the right to self-determination in contemporary

international law can be deduced from the fact that it features prominently in the UN Charter, the UN

Declaration on Human Rights and the two most important human rights treaties, the ICCPR and

ICESCR. This last step completed the transformation of self-determination from a political concept

into the legal norm we know today: the right to self-determination of peoples. The exercise of the right

to self-determination can be either external or internal. In the colonial context self-determination was

mostly sought, by peoples themselves as well as in international documents, through independence or

other forms of external self-determination. Outside of the colonial context the preferred method is

internal self-determination. This can consist of sufficient political participation, federal constructions

or a form of autonomy for a specific region. External self-determination, in the form of secession, can

only be possibly recognised as a legitimate way of exercising self-determination if all other

possibilities of self-determination are made impossible. The exercise must be by the peoples

themselves, it must be an expression of their common will as a group. This can for example be

achieved through elections or a referendum. There are a few limitations on the use of the right to self-

determination, such as the rights of others, territorial integrity of states and limitations on the use of

force. These limitations need to be taken into account in a situation that involves the possible exercise

of that right. The term „a people‟, the plurality of persons that has the right to self -determination as a

group, doesn‟t have an objective definition in law. The definition by a group of UNESCO experts

given in this chapter is the one which comes closest to being „objective‟. Sometimes it may not be

necessary to have a definition, because the group in question is recognised as „a people‟ in

constitutional or legal documents, or through state practice. In analysing the situation of the Crimean

secession from Ukraine this chapter provides the framework through which the Crimean and Russian

55 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights



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claims need to be scrutinised in the following chapters, in order to see if they have exercised their right

to self-determination of peoples in a legally just way. In chapter two the attention will be on whether

the Crimean population can be considered as a people in the context of the right to self-determination

and how they can exercise that right. Chapter three will focus on the referendum as an expression of

free will and the role of Russia in supporting the secession. In chapter four I will analyse the limitation

of territorial integrity on the right to self-determination in relation to the Crimea. Chapter five will

determine how the Crimean secession has impacted the rights of others.


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The turbulent history of the Crimea has eventually led to the contemporary composition of the

Crimean population. The population is made up out of as many as 125 different nationalities and

ethnic groups, of which the most only consist of a limited number of people67

. In this multi-ethnic

society the three largest groups are the Russians, Ukrainians and Crimean Tatars, who represent

respectively 58.5%, 24.4% and 12.1% of the total population.68 This paragraph shows that the Crimea

has seen three hundred years of Crimean Tatar rule from the fifteenth until the eighteenth century,

which explains the Crimean Tatar part of the population. The fact that they are now a minority can be

attributed to the Russian policy after 1783, especially the removal of all remaining Tatars from the

peninsula in 1944 and the fact that they were only able to return to the Crimea from 1991 onwards.

The Russian part of the population arises from the period 1783-1991, in which Russia, first as an

Empire and later as Soviet Union, had control over the Crimea and Russian migrants steadily became

the majority of the population, replacing the Tatars as majority. The Ukrainian part of the population

can mainly be attributed to the period from 1954 onwards, when the Crimea was part of the Ukrainian

SSR and subsequently part of Ukraine after the fall of the Soviet Union. This has led to a multi-ethnic

population of the Crimean peninsula.

2.2 The Crimean ‘people’

When considering whether the Crimean population can be seen as a people one cannot escape the

argument that the Crimean history has created a multi-ethnic society in which the three largest ethnic

groups, the Russians, the Ukrainians and the Crimean Tatars could be seen as three separate peoples,

who all have their separate right to self-determination.69 This argument is supported by the definition

of a people given by the UNESCO committee70

. When combining the previous paragraph with that

definition, it can at least be observed that all three ethnic groups can be said to separately correlate

with at least two points mentioned by the committee: a) a common historical tradition; and b) a shared

ethnic identity. But that does not mean that the total population of the Crimea cannot also be regarded

as a people. To establish this, it may not be necessary to go into an in-depth analysis on whether or not

the majority or separate parts of the Crimean population fit into the definition of a people given by

UNESCO. In the context of international law, a certain group of individuals can be recognised as a

people in cases where the constitution, legislation or practice of a state indicates that specified group

as a people.71

The other important aspect is, of course, whether they regard themselves as a people;

67 2001 Census results of the national structure of Crimea, State Statistics Committee of Ukraine, available at:http://2001.ukrcensus.gov.ua/eng/results/general/nationality/Crimea/ [accessed 26 March 2015]68 2001 Census results of the national structure of Crimea, State Statistics Committee of Ukraine, available at:http://2001.ukrcensus.gov.ua/eng/results/general/nationality/Crimea/ [accessed 26 March 2015]69 Bowring, B., „The Crimean autonomy: innovation or anomaly?‟, in: Weller, M. and Wolff, S. (eds.), Autonomy, Self-

governance and Conflict Resolution. Innovative approaches to institutional design in divided societies, e-book edition,Taylor & Francis e-library, 2005, p. 65.70 Final Report and Recommendations of an International Meeting of Experts on the Further Study of the Concept of the

Right of People for UNESCO, 22 February 1990, SNS-89/CONF.602/7. See chapter 1.3 of this thesis for the definition.71 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights



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their self-identification.72 Thus, in the case of the Crimean population, what needs to be analysed

primarily are the possible recognition in the Ukrainian legal order and in which way the Crimean

population provides self-identification of themselves being a people.

Out of the historical context set out in the previous paragraph it is clear that Crimea has had

periods of autonomy under the Soviet Union from 1922 to 1945 and very briefly in 1991 just before

the Soviet Union collapsed. After the emergence of Ukraine as an independent state from the collapsed

Soviet Union in 1991 there were struggles to establish a framework in which the Crimea could be part

of Ukraine while keeping the (re)established autonomy it had acquired in the final months of the

existence of the Soviet Union. This conflict lasted for several years until the Constitution of Ukraine

was adopted in 1996.73

In a process that has been described as stop-go constitution-making, the

Autonomous Republic of Crimea (ARC) eventually adopted the Constitution of Crimea in 1998.74

The Constitution of Ukraine explicitly recognises the ARC as being a territory with a special status

within Ukraine, and it provides the issues over which the ARC can assert its authority.75

This means

that the Ukrainian government recognised the exercise of self-determination by the ARC since 1996,

thus implicitly recognising the population of the ARC as a people based on the fact that they reside

within the ARC. In a case before the Constitutional Court of Ukraine in 2003, the Court confirmed the

constitutionality of a number of articles of the Constitution of Crimea, thus anchoring the

constitutional recognition of the ARC and its autonomy.76 For an expression of self-identification by

the Crimeans one does not have to look further then the Constitution of Crimea. It even states one of

the fundamental principles of the ARC as being “sovereignty of the people”.77

Thus, it explicitly

identifies the Crimeans as a sovereign people.

The Crimean population can be seen as a people with a right to self-determination. This view

is supported by the recognition of the Autonomous Republic of Crimea in the constitution of Ukraine

since 1996, as well as by the recognition of the constitutionality of the Constitution of Crimea by the

Constitutional Court of Ukraine in 2003. Furthermore, the self-identification of the (majority) of the

Crimean population is evident from the fact that they established themselves as being distinct from

Ukraine throughout the process of establishing a constitution and finally in the 1998 Constitution of

Crimea. These facts acknowledge that it would not be wrong to assume that the Crimeans, even

72 McCorquodale, R. and Hausler, K., „Caucuses in the Caucasus: The Application of the Right of Self -Determination‟, in: Green, J. and Waters, C. (Eds.), Conflict in the Caucasus: Implications for International Legal Order , Palgrave Macmillan,

Basingstoke, 2010, pp. 29-30.73 Walter, C., „Postscript: Self -determination, Secession, and the Crimean Crisis 2014‟, in: Walter, C., von Ungern-Sternberg,A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University Press, Oxford, 2014, p. 296.74 Sasse, G., The Crimean Question: Identity, Transition, and Conflict , Harvard University Press, Cambridge, 2007, pp. 199-200.75 1996 Constitution of Ukraine, 28 June 1996, chapters IX and X; English translation available at:

http://www.wipo.int/wipolex/en/text.jsp?file_id=180743 [accessed 30 March 2015]76 Bowring, B., „The Crimean autonomy: innovation or anomaly?‟, in: Weller, M. and Wolff, S. (eds.), Autonomy, Self- governance and Conflict Resolution. Innovative approaches to institutional design in divided societies, e-book edition,

Taylor & Francis e-library, 2005, p. 80.77 1998 Constitution of Crimea, 21 October 1998, Article 3(1); English translation available at:

http://www.rada.crimea.ua/en/bases-of-activity/konstituciya-ARK [accessed 31 March 2015]


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speakers have not been subject to threats in Crimea.”83 And just the tension in the region is not enough

to act as an exceptional circumstance that validates a claim to the right to external self-determination

through secession as a last resort.84

It also cannot be argued that the already existing autonomy of

Crimea is insufficient to exercise the right to self-determination meaningfully.85

So since there is no indication that the existing rights of the Crimeans are limited and since

there is no indication that the already existing autonomy of the Crimea is insufficient to fully exercise

their internal self-determination, it is clear that the circumstances of Crimea do not correspond with

the circumstances, given by the Supreme Court of Canada, in which external self-determination can be

exercised as a last resort. Thus, Crimea should have maintained their exercise of the right to self-

determination internally, and the secession from Ukraine was not the correct legal step to take under

international law on self-determination.

2.4 Conclusion

In the first paragraph I have set out the series of historical events that have led to the contemporary

composition of the Crimean population. From these events it became clear that the three major ethnic

groups in Crimea, the Russians, Ukrainians and Crimean Tatars, all have a (historical) connection to

the peninsula. I have also set out what the position of the Crimea was throughout its modern history.

In the second paragraph I have combined my findings from the first paragraph with the contemporary

views on the definition of „a people‟ with a right to self -determination. From this I have found that the

population of the Crimea can be recognised as a people with a right to self-determination. The fact that

the Crimea has known periods of autonomy under the USSR and especially the fact that Ukraine

recognises the Crimea as an autonomous republic in its constitution provide evidence of the

recognition of the Crimean population as a people. This combined with their self-identification,

through the constitution of the Autonomous Republic of Crimea, makes it clear that the Crimea

harbours a people with a right to self-determination under international law, despite the multi-ethnicity

of the peninsula. In the third paragraph I established that under contemporary international law the

exercise of self-determination should in principle be internal. Only when there is no possibility for a

people to meaningfully exercise their right to internal self-determination internally, the external

exercise can be used as a last resort. In the case of the Crimea the situation was certainly unstable, and

there was a genuine tension in the Crimea because it was believed that the Revolution could limit their

exercise of internal self-determination. There was, however, no indication that the Revolution posed

an immediate threat to the possibility of internal exercise of self-determination by the Crimea and its

83 UN OHCHR, „Report on the human rights situation in Ukraine‟, 15 April 2014, para 89. Available at:

www.ohchr.org/Documents/Countries/UA/Ukraine_Report_15April2014.doc [accessed 30 April 2015]84 McCorquodale, R. and Hausler, K., „Caucuses in the Caucasus: The Application of the Right of Self-Determination‟, in: Green, J. and Waters, C. (Eds.), Conflict in the Caucasus: Implications for International Legal Order , Palgrave Macmillan,Basingstoke, 2010, p. 42.85 Walter, C., „Postscript: Self -determination, Secession, and the Crimean Crisis 2014‟, in: Walter, C., von Ungern-Sternberg,A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University Press, Oxford, 2014,

p. 307.


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people, and thus there was no exceptional circumstance that enabled the Crimea to exercise external

self-determination as a last resort. It can be concluded that the Crimean population can be recognised

as a people with a right to self-determination, which they exercised as an autonomous republic in the

period 1922-1945 and since 1991 under both the Soviet Union and Ukraine. However, there was no

genuine indication that the already existing internal self-determination was limited by the new

government. There was no exceptional circumstance that could lead to an immediate right to external

self-determination at the moment the referendum was held in March 2014. This means that the Crimea

should have continued its internal exercise of self-determination, and that the Crimean secession from

Ukraine was not a legitimate step to take at that moment in the context of international law on self-

determination.


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3. The secession and the role of Russia

In the previous chapter I have established that the Crimea did have a right to self-determination,

though under international law they could not legally exercise this right externally in March 2014.

However, the fact that the Crimea nevertheless de facto seceded from Ukraine while claiming a right

to external self-determination prompts an analysis of the secession in the context of the separate

elements and limitations that make up the international legal rules on self-determination. When

analysing the Crimean situation of March 2014 one cannot look past the role that the Russian

Federation has played, so in this chapter I focus on two of the elements of self-determination that have

been (partly) influenced by actions taken by the Russian federation. In the first paragraph I elaborate

on the requirement in international law that the exercise of self-determination should happen through

the free expression of the will of the people. Subsequently I analyse the Crimean secession through the

referendum of 16 March 2014 in the context of this requirement. In the second paragraph I set out the

situation in which a third state is allowed to assist a people in exercising their right to self-

determination and the limitations that this third state has to adhere to. With Russia obviously assisting

the Crimea in its secession, I analyse whether the Crimean situation was such as to allow assistance

and whether Russia adhered to the limitations on this assistance. This together will provide a clear

view of the influence exercised by the Russian Federation on the Crimean secession, and what this

means for the legality of this secession in light of international law on self-determination.

3.1 The free expression of the will of the people

In chapter one I have already briefly touched upon the requirement under international law that the

exercise of the right to self-determination of a people should happen through the free expression of the

will of that people. This was set out by the ICJ in its advisory opinion on the Western Sahara. 86 In

international law, a referendum is deemed to be a sound way to determine this free will.87

For instance,

the Badinter Committee held that the will of the people in Bosnia-Herzegovina could be established

through a referendum under international supervision.88

However, for a referendum to be seen as a

genuine and free expression of the will of the people, it has to adhere to certain recognised conditions.

The Crimean referendum of 16 March 2014 is no exception and should also adhere to these

conditions. President Putin confirmed in a speech to the Russian Parliament on 18 March that the

Crimean referendum was “in full compliance with democratic procedures and international norms”.89

86 Western Sahara Advisory Opinion, International Court of Justice (ICJ), 16 October 1975, I.C.J. Reports 1975, p. 12, para

55.87 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights Law, Second Edition, Oxford University Press, Oxford, 2014, p. 344.88 Badinter Committee, Opinion No. 4, 11 January 1992, 31 ILM 1495, (1992), para 4. 89 President of Russia, „Adress by President of the Russian Federation‟, 18 March 2014, English transcript, available at:

http://en.kremlin.ru/events/president/news/20603 [accessed 16 April 2015]


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While there is no international document that precisely defines the conditions on holding a

referendum, a helpful guideline is provided by the Venice Commission of the Council of Europe: the

Code of Good Practice on Referendums (Code of Good Practice).90

An analysis of the Crimean

referendum and the situation surrounding it in light of this guideline presents a few issues that point to

the fact that, contrary to Russian and Crimean ideas, the referendum is not in compliance with

democratic procedures and international norms.

The first issue with the Crimean referendum is the wording of the referendum. The ballot

offered only two choices: 1) Are you in favour of reuniting Crimea with Russia as a subject of the

Russian Federation? 2) Are you in favour of restoring the 1992 Constitution and the status of Crimea

as a part of Ukraine? The only option for the voters was to mark one of these two choices.91

This

means that the ballot omitted other choices, such as maintaining Crimea‟s position as part of Ukraine

without any change.92 This seems to be non-compliant the requirement of free suffrage, especially with

Part I.3.1.c of the Code of Good Practice.93

The second point is the presence of military forces on the

Crimean peninsula. There were already several sources stating that Russian military forces were

publicly present on Crimean territory before and during the referendum.94 While the Russian

Federation first denied that Russian troops were active on the peninsula, President Putin confirmed in

his annual televised meeting with the nation on 17 April 2014 that there were Russian forces, and he

proclaimed that their presence was necessary to keep order so that all Crimeans could vote in their

referendum.95

However, outside of Russia, there were concerns whether the presence of military forces

might intimidate voters to choose something they did not want.96

If this is the case, it seems that the

presence of military forces during the Crimean referendum does not comply with the Code of Good

Practice, namely with Part I.3 on free suffrage.97

The last point that has to be considered is the short

period of only ten days between the calling of the referendum on 6 March and the referendum itself on

16 March.98

The British Foreign Secretary William Hague commented that: “The referendum has

taken place at ten days‟ notice, without a proper campaign or public debate…It is a mockery of proper

90 Venice Commission, Study No. 371/2006, Code of Good Practice on Referendums, 19 March 2007, CDL-AD(207)00891 Sneider, N., „2 Choices in Crimea Referendum, but Neither Is No‟, NY Times, (14 March 2014), available at:http://www.nytimes.com/2014/03/15/world/europe/crimea-vote-does-not-offer-choice-of-status-quo.html [accessed 17 April

2015]92 Burke-White, W.W., „Crimea and the International Legal Order‟, University of Pennsylvania Law Faculty Scholarship ,

Paper 1360, (2014), p. 8. Available at:http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2360&context=faculty_scholarship [accessed 19 April 2015]93 Venice Commission, Study No. 371/2006, Code of Good Practice on Referendums, 19 March 2007, CDL-AD(207)008.94 Herszenhorn, D.M., „Crimea Votes to Secede From Ukraine as Russian Troops Keep Watch‟, NY Times, (16 March 2014),

available at: http://www.nytimes.com/2014/03/17/world/europe/crimea-ukraine-secession-vote-referendum.html?_r=0[accessed 20 April 2015]95 Lally, K., „Putin‟s remarks raise fear of future moves against Ukraine‟, The Washington Post , (17 April 2014), available at:http://www.washingtonpost.com/world/putin-changes-course-admits-russian-troops-were-in-crimea-before-vote/2014/04/17/b3300a54-c617-11e3-bf7a-be01a9b69cf1_story.html [accessed 20 April 2015]96 Brilmayer, L., „Why the Crimean referendum is illegal‟, The Guardian, (14 March 2014), available at:

http://www.theguardian.com/commentisfree/2014/mar/14/crimean-referendum-illegal-international-law [accessed 20 April2015]97 Venice Commission, Study No. 371/2006, Code of Good Practice on Referendums, 19 March 2007, CDL-AD(207)008.98 Walker, S. and Traynor, I., „Ukraine crisis: Crimea now part of Russia, local parliament declares‟, The Guardian, (6 March2014), available at: http://www.theguardian.com/world/2014/mar/06/ukraine-crisis-crimea-part-of-russia-local-parliament-

declares [accessed 23 April 2015]


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standards.104 The UN General Assembly adopted a resolution on the situation on 27 March 2014, titled

„Territorial integrity of Ukraine‟, by a recorded vote of 100 in favour to 11 against, with 58

abstentions.105

This Resolution does not explicitly mention the elements that would make the

referendum illegitimate, but it does underscore that: “the referendum held…on 16 March 2014, having

no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of

Crimea.”106 It subsequently “calls upon all States, international organizations and specialized agencies

not to recognize any alteration…on the basis of the above-mentioned referendum.”107

When analysing the situation in the Crimea surrounding the referendum of 16 March 2014 it is

thus evident that this referendum cannot answer the requirement that the right to self-determination be

exercised through a free expression of the will of the people. While a referendum is a legitimate way

to determine the will of the people, the Crimean referendum does not answer the international

requirements that such a referendum has to adhere to. First of all, the two choices of the referendum

were both aimed at a change in the position of Crimea, thus not offering a choice to keep the position

of the Crimea as it was. This means that individuals who did not want a change could not express their

will through the referendum. Then there was the public presence of Russian military forces, which

meant individuals could feel pressurised into making choices that did not represent their will. And

finally there is the short period of only ten days between the calling of the referendum and the

referendum itself. This, in combination with the fact that the Crimean authorities issued a declaration

on the independence of the Crimea on 11 March, five days before the referendum., raises doubt about

the intention and neutrality of the authorities with respect to the referendum. Taking into regard the

guidelines presented by the Code of Good Practice on Referendums, the opinion of the Venice

Commission and the disqualification of the referendum by the UN General Assembly, it should be

concluded that, at least in part due to the influence of the Russian Federation through its military

presence, the Crimean referendum of 16 March 2014 cannot be regarded as the genuine and free

expression of the will of the people, required to exercise the right to self-determination.

3.2 Assistance from a third state

As has become prevalent from all actions surrounding the Crimean situation, the Russian Federation

fully supported Crimea in its move to independence. In fact, as has become clear from statements

made by President Putin on 17 April 2014, Russia deployed troops to Crimea to assist the Crimeans

104 Venice Commission, Opinion no. 762/2014 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”, 21 March 2014, CDL-AD(2014)002,

paras 23 and 28.105 UN General Assembly Official Records, 80th plenary meeting of the 68th session, 27 March 2014, UN Doc. A/68/PV.80.106 UN General Assembly, Resolution 68/262. Territorial integrity of Ukraine, 27 March 2014, UN Doc. A/RES/68/262, para

5.107 UN General Assembly, Resolution 68/262. Territorial integrity of Ukraine, 27 March 2014, UN Doc. A/RES/68/262, para

6.


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servicemen did back the Crimean self-defence forces.”115 The fact that Russian troops were present on

Crimean soil in such numbers as to be able to prevent actions by nationalist combat units implies in

legal terms that there was an armed intervention in Crimea, which was in breach of the territorial

integrity of Ukraine.116

Thus, even if Russia believed that forcible action was being taken which was

preventing the exercise of self-determination by the Crimean people, Russian troop deployment in

Crimea is not in line with the purposes and principles of the UN Charter, which means it does not

adhere to the limitations imposed on third-state assistance to a people seeking self-determination.

It can be assessed that Russian assistance to the Crimean exercise of self-determination does

not have a legal basis, for there was no indication of forcible action by the Ukrainian authorities

against Crimea. Furthermore, the Russian assistance in the form of deployment of military forces is a

violation of the prohibition on use of force against the territorial integrity of Ukraine as stated in

Article 2(4) UN Charter. Therefore it has to be concluded that Russian assistance for the Crimean

exercise of self-determination does not have any legal basis in international law.

3.3 Conclusion

In paragraph one of this chapter I started with an analysis on whether the Crimean referendum of 16

March 2014 can be seen as a genuine and free expression of the will of the people. When placing the

referendum and the situation in which it took place alongside the Code of Good Practice on

Referendums, there are several indications that this is not the case. The referendum was biased

towards separation from Ukraine; there was a public presence of Russian military forces which may

have influenced the voting in the referendum; and finally there is the short period of ten days between

the calling of the referendum and the referendum itself, in combination with non-neutrality of the

Crimean authorities. This view is supported by both regional and international organisations. The

conclusion is that, partly because of Russian influence, the referendum has failed to be the genuine and

free expression of the will of the people, and can thus not be seen as a legal exercise of the right to

self-determination. In paragraph two I discussed the possibility for peoples to receive assistance from

a third state in their exercise of self-determination. In the case of Crimea it is obvious that the Russian

Federation supported, and was even instrumental, in Crimea‟s exercise of self -determination. The

problem that arises here is that assistance from a third state can only be legal if forcible action is taken

against the people seeking self-determination. In Crimea, there was no indication of such action by the

Ukrainian authorities; hence there is no legal basis to receive assistance from Russia. Furthermore,

even if force would have been used, there are limitations that the assistance of a third state should

adhere to. In the case of Russian assistance to Crimea these limitations are violated because Russia

violated the UN Charter principle on prohibition on the use of force against the territorial integrity of

115 President of Russia, „Direct Line with Vladimir Putin‟, 17 April 2014, English transcript, available at:

http://en.kremlin.ru/events/president/news/20796 [accessed 29 April 2015]116 Tancredi, A., „The Russian annexation of the Crimea: questions relating to the use of force‟, Questions of International

Law, Zoom out I, (2014), p. 9.


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Ukraine through deploying troops to the Crimea. Overall it can be concluded that the Russian

influence on the Crimean secession has only frustrated any possible legality that the Crimean exercise

of self-determination might have possessed. The Russian military presence, combined with a biased

questioning and non-neutrality of the authorities, has led to a referendum that cannot be regarded as

the free and genuine expression of the will of the people. Russian assistance to Crimea can be regarded

as totally illegitimate, because there was no forcible action from Ukraine against the Crimean people.

Furthermore, even if there had been actions by Ukraine that could be deemed as forcible, Russian

assistance through military intervention would still not have been legal because it violates the principle

of prohibition on the use of force against the territorial integrity of another state. Thus, both the

referendum and the Russian assistance are not in line with international law on self-determination.


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4. The territorial integrity of Ukraine

One of the objections often expressed by states against external self-determination is the fact that it

violates a core principle of international law, that of the territorial integrity of the state. As described in

chapter one of this thesis, the principle of territorial integrity is indeed one of the limitations that

international law places on the right to self-determination, it protects a state against any unwanted

changes of its territory, and thus it serves to protect the sovereignty of the state. The complex relation

between the principle of territorial integrity and the right to self-determination demands a proper

analysis of this relation in the context of the Crimean secession. This chapter will be aimed at

analysing how the Crimean secession relates to Ukrainian territorial integrity, and what this means for

the legality of that secession in light of international law on self-determination. At the outset I

elaborate on the relation between the principle of territorial integrity and the right to self-

determination, and how the two are balanced in international law. Then I analyse the Crimean

secession, based on the claim of a right to self-determination, in the light of this relation. In the second

paragraph I will discuss the ICJ‟s Advisory Opinion on Kosovo which is called upon by Crimea and

Russia to legitimise the Crimean secession, and which contains some potentially interesting remarks

on territorial integrity. This together will provide a clear view on the relation between Crimea‟s claim

of the right to self-determination and Ukraine‟s territorial integrity, and on how the principle of

territorial integrity might affect the legitimacy of that claim.

4.1 Territorial integrity and self-determination

As explained in chapter one of this thesis, the principle of territorial integrity is one of the core

principles of international law, enshrined in Article 2(4) of the UN Charter. Essentially, the principle

asserts that the territory of a state will not be altered without its consent, which is based on keeping

international peace and security.117

The relationship between territorial integrity and self-determination

becomes apparent from numerous international documents, where the two principles are never far

apart. For example, in the Declaration on Principles of International Law the right to self-

determination is explicitly limited by territorial integrity. At the end of a paragraph which recognises

the right to self-determination, the Declaration states that: “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

117 McCorquodale, R., „Groups Rights‟, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights



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integrity of states.124 Thus, the territorial integrity of states would be violated by all contemporary

secessionist claims.125

As Emerson stated in 1971: “If the right of secession is eliminated and the

maintenance of the territorial integrity of states takes priority over the claims of "peoples" to establish

their own separate political identity, the room left for self-determination in the sense of the attainment

of independent statehood is very slight”126 However, to at all times adhere to the principle of territorial

integrity would not be a virtue if a people who seek to exercise their right to self-determination are

subjected to systematic deprivation of that right.127

If such cases arise, it should be noted that the

possibility of impairment of territorial integrity is not totally excluded from the aforementioned

international documents, thus they leave room for secession as a legitimate form of the exercise of

self-determination.128

The same could be said about the opinion of the Canadian Supreme Court. The

requirements are however very strict; just the fact that a people is unrepresented in a state does not

mean that secession is authorised and that the exercise of self-determination, in the form of secession,

may thus impair the territorial integrity of the state. The conditions that Cassese believes to be

necessary are: when the authorities refuse to grant participatory rights to a group, trample upon their

fundamental rights, and deny any possibility of a peaceful settlement within the internal structure of

the state.129

This would mean that external self-determination in the form of secession is the only

possible action left, a measure of „last resort‟.130

On the relation between territorial integrity and self-

determination it can thus be concluded that territorial integrity prevails over an external right to self-

determination, as long as the state complies with the principle of self-determination and allows full

internal self-determination. If this is not the case and secession is the „last resort‟ for a people to enjoy

their right to self-determination, then external self-determination may prevail over the territorial

integrity of a state. This is what needs to be taken into account in applying the relation between the

two principles it in the context of the Crimean secession.

There is no doubt that the Crimean secession has de facto redrawn the boundaries of Ukraine,

thus impairing Ukraine‟s territorial integrity. What remains is to determine whether the impairment of

the territorial integrity was justified by the circumstances of the Crimean people. In determining

whether or not the claim of self-determination by Crimea could have possibly overcome the territorial

integrity of Ukraine it is thus the question of whether the Crimean people were an unrepresented people, if they were unable to exercise self-determination internally in the period before the secession.

124 Brilmayer, L., „Secession and Self -Determination: A Territorial Interpretation‟, Yale Journal of International Law, Vol.

16:177, (1991), p. 178.125 Demissie, D., „Self -Determination Including Secession vs. The Territorial Integrity of Nation-States: A Prima Facie Casefor Secession‟, Suffolk Transnational Law Review, Vol. 20:165, (1996), p. 170.126 Emerson, R., „Self -Determination‟, American Journal of International Law, Vol. 65:459, (1971), p. 465.127 Chen, L-C., „Self -Determination and World Public Order‟, Notre Dame Law Review, Vol. 66:1287, (1991), p. 1297.128 Cassese, A., Self-Determination of Peoples: A Legal Reappraisal , Cambridge University Press, Cambridge, 1995, p. 118-

119.129 Cassese, A., Self-Determination of Peoples: A Legal Reappraisal , Cambridge University Press, Cambridge, 1995, p. 119-120.130 McCorquodale, R. and Hausler, K., „Caucuses in the Caucasus: The Application of the Right of Self-Determination‟, in: Green, J. and Waters, C. (Eds.), Conflict in the Caucasus: Implications for International Legal Order , Palgrave Macmillan,

Basingstoke, 2010, p. 42.


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The situation should be so severe as to only have external self-determination as a measure of last

resort. Only then would the Crimean claim of a right to self-determination have been legitimated to

impair the territorial integrity of Ukraine. The obvious link that exists here is between the

circumstances that allow a people to exercise its right to self-determination externally and the

circumstances that allow the principle of territorial integrity to be overcome. Since these two are

bound to each other in this way, it is very useful to reiterate here the arguments which I already

presented in chapter two, on the possibility for Crimea to exercise the right to self-determination

externally. First, it should be noted that there was no genuine indication that the Ukrainian Revolution

had negatively influenced the exercise of self-determination by the Crimeans. The OSCE High

Commissioner on National Minorities Astrid Thors found that there was tension on the peninsula, but

that there was no evidence of violations or threats to the rights of Russian speakers during her visit to

Kyiv and Crimea in the beginning of March 2014.131 The same view on possible negative effects that

the Ukrainian Revolution might have had on human rights in the Crimea was reflected in the Report

on the Human Rights Situation in Ukraine issued on 15 April 2014 by the OHCHR.132

Furthermore, it

can be argued there was no indication that the already existing autonomy of Crimea, granted under the

Ukrainian Constitution, was frustrated, or that it was insufficient to allow a meaningful exercise of

self-determination internally.133

These arguments showed that Crimea was not in a position that

allowed the external exercise of self-determination. Ipso facto, these same arguments mean that

Ukraine complied with the principle of self-determination and that the Crimean people cannot be seen

as an unrepresented or oppressed people. The territorial integrity of Ukraine should therefore be

upheld. When analysed in this manner it becomes clear that the Crimean secession cannot be based on

the right to self-determination. It conflicts with the territorial integrity of Ukraine while that territorial

integrity was safeguarded by the fact that Ukraine complied with the principle of self-determination by

allowing the Crimea to exercise self-determination through internal arrangements.

4.2 The Advisory Opinion on Kosovo by the International Court of

Justice

Until this moment the ICJ‟s Advisory Opinion on the Accordance with international of the unilateral

declaration of independence in respect of Kosovo has not yet featured in this thesis, even though the

Crimean authorities and Russia partly based the legitimacy of the Crimean secession on this

Opinion.134

This Advisory Opinion was asked by the UN General Assembly on the instigation of

131 OSCE press release, „Developing situation in Crimea alarming, says OSCE High Commissioner on National Minorities‟,(6 March 2014), available at: http://www.osce.org/hcnm/116180 [accessed 2 April 2015]132 UN OHCHR, „Report on the human rights situation in Ukraine‟, 15 April 2014, para 89. Available at:

www.ohchr.org/Documents/Countries/UA/Ukraine_Report_15April2014.doc [accessed 30 April 2015]133 Walter, C., „Postscript: Self -determination, Secession, and the Crimean

The right to self-determination - A case study of the Crimean secession.pdf

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