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Abstract
The right to self-determination is found in multiple international treaties and conventions, and has ‘crystallised into a rule of customary international law, applicable to and binding on all states’. In simple terms, self-determination denotes the legal right of a people to decide their own destiny in the international order. What this actually means in practice continues to be a contentious issue amongst international lawyers. This article will explore how lack of a consistent interpretation of the right to self-determination by states has led to confusion about its application within the realm of international law. Referenda held in the Crimea, Donetsk and Luhansk in March and May 2014 are the latest instances where self-determination has been controversially invoked. This article will discuss the notion of self-determination, its history, and how it has been applied and interpreted over the years by states and the international community. It will then examine the events in Eastern Ukraine and assess what impact they have had on the law of self-determination. It will then conclude by stating that the current law of self-determination needs a clearer and more consistent approach in order to avoid posing a serious threat to the stability of the existing state system
Keywords:
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Sofia Cavandoli is a Lecturer in Law at Aberystwyth University.
Notes
1. M. Sterio, The Right to Self-determination under International Law: ‘Selfistans’, Secession and the Rule of the Great Powers (London: Routledge, 2013), 9.
2. C. Drew, ‘The East Timor Story: International Law on Trial’, European Journal of International Law, 12 (2001): 651 at 658.
3. H.J. Steiner and P. Alston, International Human Rights in Context (New York: Oxford University Press, 2000), 1252–3.
4. Ibid., 1252–3.
5. Article 3 of the original draft of the covenant proposed by Wilson:
The Contracting Parties unite in guaranteeing to each other political independence and territorial integrity; but it is understood between them that such territorial readjustments, if any, as may in the future become necessary by reason of changes in present racial conditions and aspirations or present social and political relationships, pursuant to the principle of self-determination, and also such territorial readjustments as may in the judgment of three fourths of the Delegates be demanded by the welfare and manifest interest of the peoples concerned, may be effected if agreeable to those peoples.
6. M.K. Nawaz, ‘The Meaning and Range of the Principle of Self Determination’, Duke Law Journal (1965), 82–101 at 83.
7. Principles 2 and 3 of the Atlantic Charter, 14 August 1941, http://digital.library.unt.edu/ark:/67531/metadc581/m1/1/
8. A. Cassese, Self Determination of Peoples – A Legal Reappraisal (Cambridge: Cambridge University Press, 1995), 37.
9. G.J. Simpson, ‘The Diffusion of Sovereignty: Self Determination in the Post Colonial Age’, Stanford Journal of International Law 32 (1996): 255 at 264.
10. See Cassese, Self Determination of Peoples, 39, for criticism brought by the Belgian representative who did not take into account self-determination as an anti-colonial principle but rather a criterion for protecting nationalities and minorities. See United Nations Conference on International Organization Vol. VI 300.
11. See Cassese, Self Determination of Peoples, 39. Colombia put forth: ‘If self determination […] were to be interpreted as connoting a withdrawal, the right of withdrawal or secession, then we should regard that as tantamount to international anarchy, and we should not desire that it should be included in the Charter.’
12. United Nations Conference on International Organization, Vol. VI, 455.
13. A.E. Eckert, ‘Free Determination or the Determination to be Free? Self Determination and the Democratic Entitlement’, UCLA Journal of International Law and Foreign Affairs (1999): 55 at 67.
14. Cassese, Self Determination of Peoples, 44.
15. R.A. Miller, ‘Self Determination in International Law and the Demise of Democracy?’, Columbia Journal of Transnational Law 41 (2003): 601 at 617, citing Patrick Thornberry.
16. P. Thornberry, ‘The Democratic or Internal Aspect of Self Determination with Some Remarks on Federalism’, in Modern Law of Self Determination, ed. C. Tomuschat (Martinus Nijhoff Publishers: Dordrecht and Boston, 1993), 101 at 109.
17. 1960 Declaration on Granting Independence to Colonial Countries & Peoples, GA Res. 1514 (XV) (14 December 1960) GAOR 15th Sess., Supp. 16: 66; Principles Resolution, GA Res. 1541 UN GAOR 15th Sess. Supp. 16 at 29, UN Doc. A/4684 (1960); 1970 Declaration on Principles of International Law Concerning Friendly Relations, GA Res. 2625 (XXV) (24 October 1979) GAOR 25th Sess. Supp. 28, 121.
18. Cassese, Self Determination of Peoples, 46.
19. See statement made by UK representative in the Third Committee (A/C.3/SR.642, para. 11).
20. Argument by Sweden, UN Doc. A/C.3/SR.641 para. 13.
21. U. Barten, ‘What’s in a Name? Peoples, Minorities, Indigenous Peoples, Tribal Groups and Nations’, Journal on Ethnopolitics and Minority Issues in Europe: JEMIE 14, no. 1 (2015).
22. Badinter Commission, Opinion No. 3, 31 International Legal Materials 1499 (1992).
23. International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, Final Report and Recommendations, UNESCO, Paris, 27–30 November 1989, para. 22, p. 7, http://www.burmalibrary.org/docs18/Rights_of_Peoples-report-UNESCO-red.pdf.
24. This right is also known as the remedial right to secession and has its origins in the Aaland Islands Case (1920) L.N.O.J. Spec. Supp. No. 3. Also, the 1970 Friendly Relations Declaration is perhaps the most-cited source for evidence of an emergent rule of customary international law granting a right of remedial secession. See its Safeguard Clause – ‘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 territory without distinction as to race, creed or colour.’ G.A. Res. 2625 (XXV).
25. Milena Sterio, ‘Self-Determination and Secession under International Law: The New Framework’, ILSA Journal of International and Comparative Law 21 (2014–2015): 293 at 299.
26. General Comment No. 12 – Article 1 (The Right to Self-determination of Peoples) Human Rights Committee, Twenty-first Session, Adopted 13 March 1984, http://ccprcentre.org/doc/ICCPR/General%20Comments/HRI.GEN.1.Rev.9%28Vol.I%29_%28GC12%29_en.pdf.
27. Communication No. 167/1984: Canada 10/05/90, CCPR/C/38D/167/1984.
28. Para. 32.1 Communication No. 167/1984: Canada 10/05/90, CCPR/C/38D/167/1984.
29. Communication No. 167/1984: Canada 10/05/90, CCPR/C/38D/167/1984; Communication No. 318/1988: Colombia 15/08/90, CCPR/C/39/D/318/1988 see Paragraph 8.2; Communication No. 413/1990: Italy 05/11/90, CCPR/C/40/D/413/1990, see paragraph 3.2.; Communication No. 547/1993: New Zealand 15/11/2000, CCPR/C/70/D/547/1993, see paragraph 9.2; Communication No. 780/1997: Namibia 06/09/2000, CCPR/C/69/D/760/1997.
30. Case Concerning East Timor (Portugal v. Australia), ICJ, 30 June 1995 and Western Sahara, Advisory Opinion, ICJ GL No 61, [1975] ICJ Rep 12, ICGJ 214 (ICJ 1975), 16 October 1975.
31. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, ICJ Reports 2004 136.
32. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo Advisory Opinion, International Court of Justice, 22 July 2010.
33. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for Advisory Opinion), Summary of the Advisory Opinion of 9 July 2004, Summary 2004/2 , 9 July 2004, 10 http://www.icj-cij.org/docket/files/131/1677.pdf.
34. M. Saul, ‘The Normative Status of Self Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right?’, Human Rights Law Review 11, no. 4 (2011): 609–44 at 615.
35. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo Advisory Opinion, International Court of Justice, 22 July 2010, para 82
36. D. Shelton, ‘Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon’, AM. J. INT’L L. 105 (2011): 60 at 61.
37. Sienho Yee, ‘Notes on the International Court of Justice (Part 4): The Kosovo Advisory Opinion’, Chinese Journal of International Law 9, no. 4 (2010): 763–82 at 777.
38. T. Burri, ‘Kosovo Opinion and Secession: The Sounds of Silence and Missing Links’, German Law Journal 11 (2010): 881 at 889.
39. Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia, Opinion No. 2, 11 January 1992, 31 I.L.M. 1497, 1498 (1992).
40. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, (Can.).
41. Conference on Yugoslavia Arbitration Commission; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, (Can.).
42. Cassese, Self-Determination of Peoples, 120. Examples include: It was held by the GA that the right applied to Palestinians GA Res. 2787 (XXVI) of 6 December 1971, to the territory of Tibet GA Res. 1353 (XVI) 21 October 1959 GA Res. 1723 (XVI) 20 December 1961, it was applied to the break-up of the former Soviet Union and former Yugoslavia where the European Community's Declaration on the Guidelines on the Recognition of New States in Eastern Europe and Soviet Union (December 1991) and the Badinter Arbitration Committee accepted that self-determination applied to those territories. See also Reference re Secession of Quebec, [1998] 2 S.C.R. 217, (Can.) at 123, for instances when secession can be regarded as legal: (1) it shall concern people in territories that are subject to decolonisation; (2) it shall be envisaged by the national legislation of the parent state concerned; (3) the territory inhabited by a certain people should be occupied or annexed after 1945; (4) the secessionists shall be ‘a people’; (5) their parent state shall flagrantly violate their human rights and (6) no other effective remedies under national or international law may exist, if any of these conditions are met.
43. J. Ker-Lindsay, ‘Preventing the Emergence of Self-Determination as a Norm of Secession: An Assessment of the Kosovo ‘Unique Case’ Argument’, Europe-Asia Studies 65, no. 5 (2013): 837–56 at 838.
44. T. Franck, ‘The Emerging Right to Democratic Governance’, American Journal of International Law, 86, no. 1 (January 1992): 46 at 59. See also R. McCorquodale, ‘Self Determination: A Human Rights Approach’, International and Comparative Law Quarterly 43 (1994): 857 at 864 ‘The free determination of their political status can be achieved both by providing broad autonomy within a given State and by granting the relevant people corresponding participation in the State's political decision-making processes also.’
45. S. Wolff and A. Peen Rodt, ‘Self-Determination after Kosovo’, Europe-Asia Studies 65, no. 5 (2013): 799–822 at 806.
46. ‘Moscow Respects Will Expressed by Population of Donetsk and Luhansk Regions of Ukraine’, TASS Russian News Agency, http://tass.ru/en/world/731214.
47. Mark Kramer, ‘The Transfer of the Crimea from Soviet Russia to Soviet Ukraine, 1954’, e-Dossier no. 47, http://www.wilsoncenter.org/publication/why-did-russia-give-away-crimea-sixty-years-ago (accessed 10 August 2015).
48. Resolution of the Armed Forces of 09.07.1993 N 5359-1, on the status of Sevastopol.
49. Security Council, Note by the President of the Security Council, UN Doc. S/26118 (20 July 1993).
50. Budapest Memorandums on Security Assurances, 1994, 5 December 1994, http://www.cfr.org/arms-control-disarmament-and-nonproliferation/budapest-memorandums-security-assurances-1994/p32484.
51. On the ratification of the Treaty of Friendship, Cooperation and Partnership between Ukraine and the Russian Federation (Supreme Council of Ukraine (VVR), 1998, no. 20, 103) see http://kiev1.org/en/text-dogovora-13.html.
52. ‘Ukraine PM: Crimea “Was, Is and Will Be An Integral Part of Ukraine”’, 7 March 2014, http://edition.cnn.com/2014/03/06/world/europe/ukraine-russia-tensions/ (accessed 25 March 2014).
53. ‘Ukraine Crisis: Obama Condemns Crimea Referendum’, 6 March 2014, http://www.bbc.co.uk/news/world-us-canada-26476623 (accessed 25 March 2014).
54. Joint statement on Crimea by President of the European Council Herman Van Rompuy and President of the European Commission José Manuel Barroso http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/141566.pdf (accessed 25 March 2014).
55. ‘Proposed Crimea Referendum “Worrying and Serious” Development – UN’, UN News Centre, 7 March 2014, http://www.un.org/apps/news/story.asp?NewsID=47304#.VkswdvmsV8E (accessed 17 November 2015).
56. ‘Ukraine Crisis: EU and US Impose Sanctions over Crimea’, 17 March 2014, http://www.bbc.co.uk/news/world-europe-26613567.
57. ‘Crimea Crisis: Russian President Putin's Speech Annotated’, 19 March 2014, http://www.bbc.co.uk/news/world-europe-26652058.
58. ‘We do not recognise and will never recognise the so-called independence and so-called agreement on Crimea's integration into Russia’, Minister of Foreign Affairs of Ukraine, Yevgen Perebyinis.
59. Joint Statement by the US and Ukraine, The White House, Office of the Press Secretary, March 2014, http://www.whitehouse.gov/the-press-office/2014/03/25/joint-statement-united-states-and-ukraine.
60. Opinion 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’ adopted by the European Council's Venice Commission at its 98th Plenary Session (Venice, 21–22 March 2014); http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD%282014%29002-e (accessed 14 May 2015).
61. ‘G7 The Hague Declaration’, 24 March 2014, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/141855.pdf.
62. L. Charbonneau, ‘Ukraine Asks U.N. Assembly to Declare Crimea Secession Invalid’, Reuters Website, 25 March 2014, http://www.reuters.com/article/2014/03/24/us-ukraine-crisis-un-resolution-idUSBREA2N1T720140324.
63. UN GA Res. A/68/L39 of 27 March 2014.
64. A. Basora and A. Fisher, ‘Putin's “Greater Novorossiya” – “The Dismemberment of Ukraine”’, Foreign Policy Research Institute, http://www.fpri.org/articles/2014/05/putins-greater-novorossiya-dismemberment-ukraine.
65. ‘East Ukraine Separatists Seek Union with Russia’, 12 May 2014, http://www.bbc.co.uk/news/world-europe-27369980.
66. ‘Ukraine Rebels Defy Russia's Call to Delay Secessionist Referendum’, The Guardian, 8 May 2014, http://www.theguardian.com/world/2014/may/08/ukraine-rebels-defy-russias-call-delay-secessionist-referendum.
67. ‘Ukraine Rebels Hold Referendums in Donetsk and Luhansk’, 11 May 2014, http://www.bbc.co.uk/news/world-europe-27360146.
68. ‘Ukraine Separatists Declare Independence’, Al Jazeera, 12 May 2014, http://www.aljazeera.com/news/europe/2014/05/ukraine-separatists-declare-independence-201451219375613219.html.
69. ‘Moscow Respects Will Expressed by Population of Donetsk and Luhansk Regions of Ukraine’, http://en.itar-tass.com/world/731214 (accessed 20 September 2014).
70. The Verkhovna Rada of Ukraine adopted the Law ‘On the Special Order of Local Self-government in Separate Regions of Donetsk and Luhansk Oblasts’, http://iportal.rada.gov.ua/en/news/page/news/News/News/97818.html.
71. ‘Ukraine Crisis: Rebels Defiant over New Self-rule Law’, 17 September 2014, http://www.bbc.co.uk/news/world-europe-29232830.
72. Statement made by Andrei Purgin, Donetsk Rebel Leader, ‘Ukraine Crisis: Rebels Granted Self-rule and Amnesty’, http://www.bbc.co.uk/news/world-europe-29220885.
73. R. Balmforth and P. Polityuk, ‘Ukraine President Accuses Russian Soldiers of Backing Rebel Thrust’, Reuters 29 August 2014’, https://uk.news.yahoo.com/ukraine-accuses-russia-launching-invasion-102937973.html#0vDmTiy.
74. Constitution of the Ukraine, European Commission for Democracy through Law (Venice Commission), Text provided by the Ukrainian authorities on 13 March 2014, http://www.legislationline.org/download/action/download/id/5492/file/Ukraine_Constitution_am2014_en.pdf.
75. Catalonia's referendum was meant to take place in November 2014, however it was subsequently suspended by Spain's Constitutional Court. An informal vote took place instead which showed that 80% of inhabitants were in favour of independence. The informal vote has no legal validity, http://www.bbc.co.uk/news/world-europe-29982960. As of February 2015, the Spanish Constitutional Court has ruled past and future referendums on Catalan independence illegal, http://www.dw.de/spain-court-rules-catalonia-independence-votes-illegal/a-18279028.
76. The argument for remedial secession was used in the cases of Bangladesh declaring itself independent from Pakistan (1971) and in the partition of North and South Sudan (2011).
77. Declaration of Independence (Kosovo 2008), http://www.assembly-kosova.org/?cid=2,128,1635.
78. J. Batchelor, ‘Reaching the Endgame in the Ukraine’, Al Jazeera, 5 August 2015, http://america.aljazeera.com/opinions/2015/8/reaching-the-endgame-in-ukraine.html.
79. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo Advisory Opinion, ICJ, 22 July 2010, para. 81.
80. Written Statement of the Russian Federation, Kosovo Advisory Opinion (16 April 2009), para. 84.
81. Ibid., para. 88 – ‘[T]he Russian Federation is of the view that [international law] may be construed as authorizing secession under certain conditions. However, those conditions should be limited to truly extreme circumstances, such as an outright attack by the parent State, threatening the very existence of the people in question. Otherwise, all efforts should be taken in order to settle the tension between the parent State and the ethnic community concerned within the framework of the existing State.’
82. Ibid., para. 81.
83. Vladimir Putin, President, Russian Federation, Address Before the State Duma Deputies, Federation Council Members, Heads of Russian Regions and Civil Society Representatives in the Kremlin (18 March 2014), transcript available at http://eng.kremlin.ru/transcripts/6889.
84. Ibid.
85. Presidential Address to the Federal Assembly, http://eng.kremlin.ru/transcripts/23341 (4 December 2014).
86. Afghanistan - http://www.theguardian.com/world/2014/mar/24/afghan-president-hamid-karzai-backs-russia-annexation-crimea; Cuba - http://www.themoscowtimes.com/article.php?id=497144.html; Nicaragua - http://sputniknews.com/voiceofrussia/news/2014_03_27/Nicaragua-unconditionally-recognizes-incorporation-of-Crimea-into-Russia-7481/; North Korea - http://lenta.ru/news/2014/12/30/crimea/; Syria - http://www.euronews.com/2014/03/06/bashar-al-assad-letter-of-support-to-putin/; Venezuela - https://www.rt.com/news/venezuela-maduro-ukraine-crisis-921/.
87. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do.
88. M. Gombu and J. Buragohain, ‘Internal Self Determination: An Alternative to the Secessionist Movements in India's North East’, The Student Advocate 10 (1998): 81 at 83.