As Russia is set to absorb Crimea in the wake of the 16 March referendum, there is one critical distinction which has to be made clear: the Crimean case is fundamentally different from that of Kosovo, and the justification under international law of Kosovo’s break with Serbia cannot be used to legitimise the current movements towards unilateral secession in Crimea. Angela Merkel recently called comparisons of the two cases ‘shameful.’ We agree, and we believe more is at stake than stopping Russian aggression in the region.
Crimeans celebrate the success of their referendum calling for unification with Russia. (c) RIA Novosti/Valery MelnikovRussian diplomats have explicitly cited the 2010 International Court of Justice (ICJ) advisory opinion allowing Kosovo’s Declaration of Independence to make their case for a Crimean separation, notwithstanding the fact, it should be noted, that Russia vociferously criticised that same ruling at the time it was delivered. The comparison is deeply mistaken and dishonest. Unfortunately, it also is entirely understandable, given the timid reasoning advanced by the Court’s judgment.
Justification for secession
Our purpose, then, is to resist Russian historical conflation and, moreover, to push a richer reading of the international law of secession that would explain why such a conflation is manifestly unjustified. The way to do this, we believe, is to clarify the principles of international law that govern the secession of states, something that the majority of the ICJ ultimately failed to do in its Kosovo opinion. This gets to the heart of the questions of when, if at all, secession is an appropriate and justified resolution to political conflict, and under what conditions secessionist groups can gain legitimacy for their causes in the grand pronouncements of international law.
First, a few preliminary legal issues to set the stage:
1) International law provides no support for those voices advocating that Crimea may secede from Ukraine through the referendum. International law traditionally supported a right to secede only as an expression of the right to self-determination where that right has been suppressed by colonial domination or foreign occupation. Beyond these recognised contexts, references to self-determination offer little support for breakaway movements, and international law recognises no general right to secede. Indeed, attempts at unilateral secession are trumped by a foundational and clear principle of the international order under the UN Charter: the territorial integrity of sovereign states.
The justification under international law of Kosovo’s break with Serbia cannot be used to legitimise secession in Crimea.
2) In the first instance, therefore, any movements towards secession must be a matter for national constitutional law. No constitution grants such a right to unilateral secession. Famously, the Supreme Court of Canada confronted this question comprehensively in 1998 in its Reference re Secession of Quebec decision on the constitutionality of Quebec's right to secede unilaterally from Canada. It denied this right under both Canadian constitutional law and international law. The Court noted that the region’s ‘internal self-determination’ is met by a people’s free pursuit of political, economic, social, and cultural development within the framework of the existing state. It ruled, further, that if there were a positive referendum on secession in Quebec, Canada's political branches would have to work with Quebec to find a political solution. Here, the emphasis is in determining the legitimacy of the unilateral aspect of moves to secession, that is, the right of one part of a sovereign state to decide on its own to withdraw membership from its parent state. The parent state must be part of a framework solution that ultimately sanctions secession or not. Secession, in other words, is not a decision to be taken by only the seceding party. Insofar as the political solution can be found within a federal structure, secession might not be necessary. If it cannot, secession might be unavoidable.
3) Internationally, secession in the final analysis has been a question of practical political recognition by states of states. If a seceding state gains enough international recognition of its status, it attains legitimacy and de facto independent statehood.
Kosovars celebrate the one-year anniversary of their own (widely-recognised) independence declaration. CC David Bailey
Kosovo and Crimea
Now let us return to the case of Kosovo. Here, we should note the following:
1) Kosovo did not seek independence under a post-Yugoslav or Serbian constitution, indeed not under any national constitution at all. Following the NATO intervention and the UN Mission, UN Security Council Resolution 1244 constituted the binding legal order. 1244 refused to take a stand on Kosovo's final status, leaving the matter for future Security Council decisions, and did not impede or prevent a declaration of independence. Indeed, Kosovo's Declaration of Independence was meant as a public affirmation of what had by then become a political fact, with Kosovo being recognized by powerful states, including 9 out of 15 Security Council members.
The parent state must be part of a framework solution that ultimately sanctions secession or not.
2) While Kosovo obviously sought independence outside colonialism and foreign occupation, historical events clearly indicate that the relationship between Serbia and Kosovo were in effect not dissimilar to these contexts. Factually, the Security Council and the International Criminal Tribunal for the former Yugoslavia, among others, explicitly recognised occurrences of mass human rights violations, war crimes, crimes against humanity, and ethnic cleansing in Kosovo. Kosovo's ability to exercise 'internal self-determination' within Serbia was severely limited to the point of being unimaginable.
Crimea differs decisively from Kosovo on each of these counts:
1) The Ukrainian Constitution still governs Crimea, despite the revolutionary times and the changes to the order. Indeed, Crimea’s own regional constitution recognises the Ukrainian Constitution as authoritative. While international law may be silent on a referendum favouring independence, Ukrainian law assuredly is not. Indeed, the Ukrainian Constitution, in strong language, considers Crimea to be an 'integral constituent part of Ukraine' that 'shall resolve issues relegated to its authority [within the Constitution of Ukraine].
2) There exist no comparable, verifiable allegations that grave violations of fundamental rights have occurred in Crimea. The facts on the ground do not show a degree of oppression compelling Crimea to secede to protect its population, and Crimea's 'internal self-determination' is not self-evidently threatened. Indeed, the very existence of a Crimean Parliament able to shepherd the recent referendum undermines the argument that the Crimean people are being denied their self-determination.
For these reasons, Crimean secession violates Ukraine’s territorial integrity, one of the foundational norms of the international order; Crimea’s actions are unlawful under both constitutional and international law; and Russia’s support for such actions is unjustified.
And yet the cases of Kosovo and Crimea continue to be conflated with an opportunism that undermines the credibility of international law. To see why, let us return more carefully to the ICJ opinion on Kosovo’s independence declaration.
Crimea’s actions are unlawful under both constitutional and international law; and Russia’s support for such actions is unjustified.
ICJ and the Lotus principle
The International Court of Justice recognized Kosovo's Declaration of Independence as ‘in accordance with’ international law solely because it did not violate any applicable rules of international law. As we noted above, the Court did not rule directly on the question of secession under international law because it refused to address whether the declaration of independence had any effect on Kosovo’s independence. The Court opted instead to follow the ethos of the antiquated SS Lotus case, which established the principle that, under international law, that which is not forbidden is permitted. In this sense, the opinion carried a clear lesson for the Crimean referendum—international law does not prohibit the referendum, insofar as the referendum itself has no effect on Crimea’s secession from Ukraine. To say that the opinion supports a broader right misstates its meaning, but the door is left gapingly open to invite such a conflation. To its fault, the ICJ declined to develop this body of law.
The ICJ issues its ruling on Kosovo's unilateral declaration of independence. CC Lybil BERWe consider this to have been a mistake. By not examining any principles according to which the legal claims to secession might be assessed, the ICJ has implicitly allowed states like Russia to support illegal acts of secession that suit their particular political interests, all the while aping the language of respecting international law.Part of the reason that these doctrines may be abused as pretext for illegal adventures such as today’s is that international law currently lacks a clear remedy where a minority political group, ethnicity, or nationality is subjected to oppression and grave violations of their fundamental human rights within a state. The ICJ could have provided guidance in its advisory opinion, but declined to do so. In the context of international human rights law, this means that there is no remedy for an oppressed people where an instrument does not affirmatively grant this right.
The ICJ has implicitly allowed states like Russia to support illegal acts of secession that suit their particular political interests.
Instead, the ICJ could (and, in our opinion, should) have ruled as its Judge Cançado Trindade had asked it to rule in his 'Separate Opinion': leveraging the full weight of the principle of self-determination, he asked that the Court recognise in effect a new, robust concept under international law – the right to remedial secession, that would respond to the law’s shortcoming in this regard and help clarify an affirmative right in cases where a population has been the victim of severe and systematic human rights violations. A clear, positive principle would provide ascertainable limits to the entitlement, facilitating the exercise of the right to self-determination of peoples already entitled to the right, while distinguishing groups lacking such a right under international law and opposing pretextual invocations such as today’s.
As Cançado Trindade wrote then in his moving, almost poetic, opinion, in the spirit of a ‘humanistic reading of international law’ worthy of our common solidarity:
'States transformed into machines of oppression and destruction ceased to be States in the eyes of their victimised population. Thrown into lawlessness, their victims sought refuge and survival elsewhere, in the jus gentium, in the law of nations, and, in our times, in the Law of the United Nations. I dare to nourish the hope that the conclusion of the present Advisory Opinion of the International Court of Justice will mark the closing chapter of yet another long episode of the timeless saga of the human kind in search of emancipation from tyranny and systematic oppression.'
The principled question must be, can Ukraine be described as such a state? Has revolutionary Ukraine transformed into such a 'machine of oppression and destruction'? The answer must plainly and emphatically be 'no.' There remain, one cannot doubt, mass popular protests and instances of provocation and violence. No part of our analysis can be meant to diminish the gravity of these events. But a careful distinction must be made; none of these events in relation to Crimea together rise to the level of systematic, grave violations of fundamental human rights. Should they do so in the future, then our analysis must change. For now, however, Mr. Putin's intervention and Crimean efforts to unilaterally secede lack legal and (one is moved to say) moral basis. What is needed now, most urgently, is responsible political discussion about the future of a nation that has endured some of human history's most horrific events. That discussion, in the first instance, must be conducted by Ukrainians for and about themselves, and it is our duty to help them conduct it, whatever outcome we might independently wish to see.
The authors served together in the Legal Unit of the International Civilian Office/Office of the EU Special Representative in Kosovo in the summer of 2010, as the ICJ advisory opinion on Kosovo's Declaration of Independence was delivered.
The views expressed are their own