Crimea and the Legality of Self-Determination

Depending on where you get your news, Crimean independence from Ukraine represents either the correction of a historic mistake that “reflects the aspirations of Crimea’s residents” or the breach of international law “violating the sovereignty and territorial integrity of Ukraine.” The truth lies somewhere in between.

Russian president Vladimir Putin argued that the 2008 independence of Kosovo and the subsequent validation of the legality of Kosovo’s declaration independence in a 2010 ruling by the International Court of Justice set a precedent prioritizing the right to self-determination above the principle of territorial integrity.

In a 2007 interview Vladimir Putin laid out the Russian position:

If we want to place the principle of a people’s right to self-determination – the principle behind the Soviet Union’s policy during the time when peoples were struggling to free themselves from colonialism – above the principle of territorial integrity, this policy and this decision should be universal and should apply to all parts of the world, and at least to all parts of Europe. We are not convinced by our partners’ statements to the effect that Kosovo is a unique case. There is nothing to suggest that the case of Kosovo is any different to that of South Ossetia, Abkhazia or Trans-Dniester

The United States on the other hand chose to take the position that Kosovo was a special case. As John B. Bellinger III, the top State Department lawyer under George W. Bush told the New York Times:

We were very careful to emphasize that Kosovo was a unique situation. We were fond of saying it was sui generis — and it did not create a precedent that would likely be replicable anywhere else.

Very convenient — but based on the years of oppression ethnic Albanians in Kosovo had endured prior to the revocation of Kosovo’s status as an autonomous region, and the continued oppression that occurred under Serbia following the breakup of Yugoslavia, a strong argument can be made that it was only through independence that residents of Kosovo could achieve self-determination.

In truth, the circumstances under which a state may legally declare independence remains a grey area in international law. Kosovo’s independence is recognized today by slightly more than half of UN member states. The non-binding advisory opinion on Kosovo provided by the ICJ specifically chose not to address many of the key issues related to the Kosovo case, most importantly the issue of right to unilateral secession. On this issue, the Canadian Supreme Court decision in regards to the right to secession of Quebec provides insight into the international consensus: “such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states.” Based on the lack of international consensus on the legitimacy of the ‘state’ of Kosovo, it follows that legitimacy of declarations of independence can only be evaluated on a case by case basis through their recognition as new states by other legitimate states.

As such, Kosovo hardly stands as a precedent, and most states that chose to recognize Kosovo’s decision to declare independence early on, acknowledge that Kosovo is a unique case. Kosovo does however seem to represent a shift from the tradition of all global territory being fixed in international law. This may provide a basis for other peoples to argue that only through a declaration of independence can their self-determination be guaranteed and receive international recognition as a new state as a result.

When it comes to Crimea and other declarations of independence, this standard of self-determination is what should determine legitimacy of secession. While outright annexation of Crimea by Russia would represent a clear violation of international law, a declaration of the independence of Crimea from Ukraine, as a result of prohibition of self-determination caused by internal state conflict, may be legal under international law. As with Kosovo, this legality could only be determined through recognition of the legitimacy of a declaration of independence by other states.

It is also worth noting that the Kosovo case has likely only been possible as a result of the new international order which has come into being after the end of the Cold War. Only through the support and protection of external states could Kosovo’s independence be protected. In this sense, Kosovo could be seen as a precedent for an independent Crimean state protected by the Russian federation, and perhaps new independent states which will break away in the years to come under the protection of powerful allies.

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