Self-determination of Ukrainian People and Russian Aggression

1- Brief remarks on the international law regime on self-determination of peoples

The principle of external self-determination of peoples operates in three well-known cases identified in practice and consolidated case-law: former colonies, foreign military occupation and government that practices apartheid or racial discrimination. As indicated by the ICJ in the Advisory Opinion on Kosovo ‘during the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.’ ¹  

In the other cases (ie, not former colonies, foreign military occupation or governments practicing racial discrimination) there is a so-called neutral stance of the principle of self-determination that neither authorizes nor prevents declarations of independence. It should be noted that this is a ‘reasoned’ neutrality, which is a result of a balance between the right to external self-determination of the local population and the right of the State to maintain its territorial integrity. However, in this case a general limit—stated, once again, by the ICJ in the aforementioned opinion on Kosovo—must be applied. According to the Court, the declaration of independence of the new State must not be ‘connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).’ ² The importance of this limit in the context of the topic discussed in this contribution is apparent, in light of the Russian practice both in Ukraine and in other Eastern countries. 

With regard to internal self-determination, it is equally known that the exercise of this right does not imply the right to secede by local populations. A possible exception is the application of the highly problematic theory of remedial secession in case of gross violation of the right at stake, together with the commission of serious breaches of human rights against a specific part of the national population. With particular reference to Quebec, the Canadian Supreme Court, in its Advisory Opinion of 20 August 1998 on the secession of Quebec, considered that ‘when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession.’ ³ As in the other cases of self-determination, ⁴ in the secession-remedy case it is necessary to respect not only the substantive requirements indicated above but also the procedural obligations to negotiate in good faith with the central government, in order to balance the principle of self-determination and the principle of territorial integrity of the State, as well as to give adequate time to organize and carry out the referendum. This guarantees local population to be adequately informed of the referendum questions and the consequences of the secession. 

In my opinion, although designed to react to a violation of fundamental principles and norms in the international legal order (erga omnes obligations), remedial secession does not seem to be accepted in international law yet, as implicitly stated again by the ICJ in the above-mentioned Advisory Opinion of 2010. Therein the Court stressed that ‘whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question. Similar differences existed regarding whether international law provides for a right of “remedial secession” and, if so, in what circumstances.’ ⁵

2- General overview on the Russian stance on self-determination issues

For some authors, the Russian practice on the subject of secession, after following a ‘conservative’ approach, based on the prevalence of the principle of the State’s territorial integrity, has changed its course. ⁶ Mälksoo argues that prior to the annexation of Crimea, even the most prominent representatives of the Russian scholarship of international law ‘argued that, in international law, the principle of State sovereignty clearly trumps the right to self-determination’, whereas afterwards ‘no Russian international lawyer (…) publicly declared the invasion and annexation of Crimea to be illegal under international law.’ ⁷

According to Christakis, ⁸ Russia endorsed for the first time the theory of remedial secession in August 2008, in order to justify its decision to recognize the independence of Abkhazia and South Ossetia in Georgia. The same argument was cautiously used by Russia in 2009 in the written statement submitted by Russia to the ICJ in relation to the Kosovo Advisory Opinion proceedings. ⁹ As claimed by Russia, ‘outside the colonial context, international law allows for secession of a part of a State against the latter’s will only as a matter of self-determination of peoples, and only in extreme circumstances, when the people concerned is continuously subjected to most severe forms of oppression that endangers the very existence of the people.’ Russia also clarified that no extreme circumstances existed in the case of Kosovo and that ‘the population of Kosovo faced no risk of oppression.’

It seems that Russia has recently changed its opinion not because it is convinced of the validity of the pro-self-determination arguments. On the contrary, it has used and still uses in a specious way the principle of self-determination and other international law principles, such as the self-defense principle, for its purposes of expanding its territory and its area of influence, sometimes suddenly changing its positions as to the legal basis of its conduct, even in relation to the same case of practice.

3- The application of the principle of self-determination of peoples in the conflict in Ukraine: from the annexation of Crimea in 2014 up to the aggression of 2022 

The annexation of Crimea is the ‘litmus test’ of the aforementioned Russian modus operandi in relation to self-determination issues. As noted by Corten, Russia did not refer to the unilateral right to intervene in a civil war in Crimea, but it rather invoked an intervention by invitation, at a first stage, by what it considered the official Ukrainian authority (President Yanukovich), and, in a second phase, by the government of the new Crimean State. ¹⁰ At the same time, Russia invoked the application of the principle of self-determination of the Crimean population, awkwardly justifying its intervention in Crimea by affirming that ‘Russia created conditions (…) only for the free expression of the will of the people living in Crimea and Sevastopol.’ ¹¹

With regard to the Russian invocation of the self-determination principle and, more specifically, the remedial secession theory on behalf of the Crimean population, it can be said that no legal ground in the current regime on self-determination can be found for the Russian position for multiple reasons. 

Russia violated the jus cogens rule on the prohibition of the use of force, thus rendering unlawful and without any legal effect the declaration of independence and the subsequent incorporation of Crimea to Russia. Moreover, in relation to the remedial secession theory, reference has been made by Russia to the human rights violations suffered by Tatars in Crimea, but it is very doubtful that the alleged violations against the Tatars reached the high threshold commonly accepted by the authors who support this theory. Furthermore, the Tatars situation in Crimea got worst after the annexation, with their displacement in significant numbers and in different areas, and this shows how the Russian argument was created just as a pretext. ¹² Russia seems even to propose a particularly extensive interpretation of the remedial secession theory, allowing external armed intervention in order to guarantee it. Finally, Russia has not respected any substantive and procedural obligations connected to the application of the self-determination principle in the case at stake.

In general terms, the unfounded application of the self-determination principle in Crimea by Russia has been underlined by the UN General Assembly in its Resolution of 27 March 2014, No. 68/262, on the Territorial Integrity of Ukraine ¹³ and, in more specific terms, by the Venice Commission of the Council of Europe in the Advisory Opinion of 21 March 2014. ¹⁴ Apart from the violations of the Ukrainian Constitution, the Commission, on the basis of international law, considered that ‘a number of circumstances make it appear questionable whether the referendum of 16 March 2014 could be held in compliance with international standards.’ Among others, such circumstances are ‘the massive public presence of (para)military forces [which] is not conducive to democratic decision making’, the concerns regarding the ‘respect to the freedom of expression in Crimea’, the short period (10 days) between the decision to call the referendum and the referendum itself. Moreover, in the Commission’s opinion the referendum question was not worded neutrally and in unambiguous way, in addition to the fact that ‘no negotiations aimed at a consensual solution took place before the referendum was called.’ ¹⁵  

4- The application of the principle of self-determination in Russian practice relating to territorial contexts other than Ukraine 

In territorial contexts other than Crimea, but always in the area of influence of the former USSR (eg in Abkhazia and South Ossetia, Georgia, or in Transnistria, Moldova), the Russian approach is similar but it is adapted to the local context. The main legal ground, directly or indirectly invoked, is again the remedial secession, not always declared expressis verbis. Moreover, the discussed approach even considers the external intervention by third parties, aimed at supporting the secession by local population, as lawful. 

It is well-known that Russia guarantees political, economic, and military support to some secessionist entities in sovereign States located in the former USSR territory or area of influence. In some cases, relying on the objective historical and political ties with Russia, which are sometimes effectively disregarded by foreign States, such guarantees have been accorded with regard to the alleged protection of the rights of the numerous Russian-speaking minorities present in Eastern European countries. 

On the one hand, the Russian support for secessionist entities has the intent of reducing and progressively severing the ties with the territorial State that is subjected to separatist requests, also by using very unscrupulous tools—such as the possibility of easily obtaining Russian citizenship for the inhabitants of these entities—thus violating, as far as my opinion is concerned, the principle of non-interference in foreign affairs. In this context, the measures adopted by Russia, entailing the almost automatic granting of Russian citizenship to Ukrainian citizens residing in Crimea, cannot be clearly considered as lawful. Such conclusions shall also be extended to the most recent Russian measures aimed at facilitating the acquisition of Russian citizenship by all Ukrainian citizens, included those residing in the four recently annexed regions of Donetsk, Luhansk, Kherson and Zaporizhzhia. ¹⁶

On the other hand, Russia seems to make efforts to feed tensions between the foreign State and the secessionist entity under the Russian support or control, in order to induce that State to react towards the local population and to subsequently invoke the remedial secession also through military intervention, as in the case of South Ossetia, Crimea and Donbass.

From an operational point of view, Russia facilitates, where possible, the holding of referenda in the secessionist entities and subsequently supports, but with different approaches, the request for annexation to Russia. For example, while Russia accepted the request for annexation of Crimea a few days after the referendum on independence, ¹⁷ with reference to the independence of the Donetsk People’s Republic and the Luhansk People’s Republic, proclaimed on 6 and 27 April 2014 after the referenda were held, Russia recognized the independence only in February 2022, accepting at the same time the request of armed intervention by these entities. 

As in the case of the referendum and annexation of Crimea, similar considerations of unlawfulness are valid for the referenda of September 2022 on the annexation by Russia of the regions of Donetsk, Lugansk, Kherson and Zaporizhzhia, as again noted by the UNGA in the Resolution of 12 October 2022, ¹⁸ in line with Article 41, paragraph 2 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts.

In a further different way, in South Ossetia, which has long declared itself independent in 1990 and has been recognized by Russia only in 2008, the holding of the referendum on annexation by Russia, which should have been held in July 2022, was postponed in May 2022 after a change of government in South Ossetia. ¹⁹

In light of the above, in the context of the application of self-determination on territories under Russian influence, the Russian main legal ground is based on remedial secession, which is invoked in a specious way and interpreted very extensively, so as to justify an armed intervention allegedly in support of the local population. The times and methods of exercising the right of self-determination of peoples under Russian military control or occupation vary according to the different situation on the ground, but, in all of the cases I referred to, there is no respect of the substantive and procedural obligations linked to the self-determination issues under international law.

5- Final considerations on the development of the principle of self-determination of peoples in the recent practice 

As far as I am concerned, the Russian recent practice shows the necessity of a rethinking in terms of the content and application of the principle on self-determination, whose compliance is systematically circumvented by Russia (and sometimes by other States, including Western countries), which seeks to exploit the weaknesses of the current international regime on self-determination by invoking it in specious ways, bending the principle to the State’s interests.

The time has come to review the aforementioned neutrality of the international law regime outside the consolidated cases of external self-determination, further enhancing the principle of territorial integrity in a very different historical period from that in which the principle of self-determination emerged and thrived as a legal principle, and in which the aggressive conducts of the strong States—Eastern but also sometimes Western countries—take advantage from the said neutrality of the principle at stake. 

At the same time, it is necessary to take a clearer and sharper position, by scholars as well as by the States, even on the part of Western countries, on the theory of remedial secession, thus overcoming political opportunisms and positions of political convenience, as happened in the case of Kosovo. In other words, in order to prevent aggressive States from the ill-founded invocation of this theory, time has come to take an explicit position on whether the theory itself has a foundation in international law, even if only in terms of progressive development of the principle of self-determination, provided that precise and stringent substantive and procedural requirements are respected (included the exclusion of foreign armed interventions to enforce the remedial secession). If elaborated in these terms, the remedial secession could be accepted in international law as better balancing the application of the principle of territorial integrity on self-determination issues.

1. See Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 436, para 79.
2. Ibid 437, para 81.
3. See Reference Re Secession of Quebec (Advisory Opinion) [1998] Canadian Supreme Court, para 134. Anyway, the Court concluded that, even assuming that the remedial secession ‘is sufficient to create a right to unilateral secession under international law, the current Quebec context cannot be said to approach such a threshold’, para 135.
4. On the relevance of the procedural obligations in secession cases, see Thomas D. Grant, ‘Annexation of Crimea’ (2015) 109 AJIL 76.
5. Supra note 1, 438, para 82.
6. For an in-depth analysis of the Russian approach on the principle of self-determination of peoples, see J. Johannes Socher, Russia and the Right to Self-Determination in the Post-Soviet Space (OUP 2021).
7. See Lauri Mälksoo, ‘Crimea and (the Lack of) Continuity in Russian Approaches to International Law’ (2014) EJIL: Talk! <https://www.ejiltalk.org/> (accessed 30 January 2023); Lauri Mälksoo, Russian Approaches to International Law, (OUP 2015) 192.
8. See Theodore Christakis, ‘Self-Determination, Territorial Integrity and Fait Accompli in the Case of Crimea’ (2015) 75 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 87.
9. See Written Statement by the Russian Federation [2009] ICJ <www.icj-cij.org/docket/files/141/15628.pdf>, accessed 30 January 2023, 39-40.
10. Olivier Corten, ‘The Russian Intervention in the Ukrainian Crisis: Was Jus Contra Bellum Confirmed rather than Weakened’ (2015) 2 (1) J. Use Force Int. Law 17.
11. See the statements of the Russian President Vladimir Putin held on 18 March 2014, annexed to UN Doc. A/68/803-S/2014/202, 5.
12. For further details on the Tatars’ situation, see Thomas D. Grant, ‘Annexation of Crimea’ 73-75; Sofia Cavandoli, ‘The Unresolved Dilemma of Self-determination: Crimea, Donetsk and Luhansk’ (2016) 20 (7) Int. J. Hum. Rights 881.
13. According to the UNGA ‘the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol.’ See Territorial Integrity of Ukraine, UNGA Res 68/262 (27 March 2014), para 5.
14. See 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 (Advisory Opinion) Venice Commission of the Council of Europe No. 762/2014, CDL-AD(2014)002.
15. Ibid paras 22-26.
16. See the Russian Presidential Executive Order of 11 July 2022, No. 440.
17. See the bilateral agreement on the accession of Crimea to Russia of 18 March 2014.
18. See UNGA Res (12 October 2022) UN Doc A/RES/ES-11/4, paras 2-5.
19. Anyway, the preparation of the referendum on the independence of South Ossetia was considered legitimate by Russia again on the basis of the remedial secession theory. See UNSC Rep (28 August 2008) UN Doc S/PV.5969, 6-9.