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The Unresolved Dilemma of Self-Determination: Crimea, Donetsk and LuhanskKey words: Self-determination, Secession, Ukraine, Russia.IntroductionThe 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. To whom the right applies to and in what context it can be invoked, are issues which remain highly debated and still unresolved. The concept’s application beyond the colonial setting has been described as ‘plagued by an excess of indeterminacy both in terms of scope and content.’ Such indeterminacy has raised serious questions in a number of situations and conflicts where the right to self-determination has been proclaimed.Self-determination is a highly controversial topic that has played a key role in contemporary international relations, with people around the world, in a variety of circumstances, claiming to possess such a right. As a concept, it is of a potentially radical and subversive nature, capable of undermining the territorial integrity and sovereignty of a state. It is for this reason that international law has approached the concept in a cautious and restrained manner, unwilling to commit itself to a particular stance.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 of 2014 in Crimea, Donetsk and Luhansk 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.Historical background and development of the right to self-determinationInternational law was slow to recognise the juridical significance of self-determination. Woodrow Wilson was one of the first proponents of the theory of self-determination. Although he never gave a precise definition, Wilson built his ideas on liberal premises indicating that “peoples should be dominated and governed only by their own consent.” He described self-determination as “an imperative principle of action” and was adamant it should play an integral role in the League of Nations. Wilson’s proposed articulation of a League of Nations Covenant provision on self-determination was considered and re-drafted a number of times at the Paris Peace Conference. The term was ultimately excluded altogether due to inconsistencies as to its interpretation.The issue of self –determination reappeared during the Second World War when the US and the UK declared it one of the goals to be achieved and to be put into practice at the end of the conflict. The Atlantic Charter, the predecessor to the United Nations Charter, drafted by President F.D Roosevelt and Winston Churchill, contained provisions which stated that self-determination governed territorial changes as well as the principle concerning free choice of rulers in every sovereign state. Churchill adopted a narrow interpretation of the principle by emphasising that it only applied to European States affected by the Nazi invasion. Inclusion of the principle of self-determination in Article 1(2) of the UN Charter initiated its climb in prestige in international law. This was the first time it was formulated as a legal standard. Article 1(2) states the following:The Purposes of the United Nations are:(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.”Not all States were happy with the concept’s inclusion in the Charter. Some considered it dangerous to place self-determination as a basis for friendly relations between nations as it would allow for inadmissible interventions. Others feared it would bring about civil strife and encourage secessionist movements. The Committee responsible for the drafting of the provision, ultimately interpreted self-determination as a principle of universal application which allowed for the free and genuine expression of the will of the people. In spite of its newly elevated status, the Charter did little to clarify what self-determination actually meant. It simply stated that one of the organisation’s purposes was to “develop friendly relations among nations based on the respect for the principle of equal rights and self-determination of peoples.” Aside from this reference, the Charter mentions self-determination of peoples in only one other place - Article 55 - “as a condition for peaceful and friendly relations.” In the decades following the Second World War, the principle of self-determination began evolving. Thanks to the prevalence of the socialist doctrine of self-determination and the drive generated by the anti-colonialist movement at the Bandung Conference in 1955, its emphasis shifted from peaceful relations among sovereign States to independence from colonial rule. Socialist countries were soon joined by Third World countries who were the most active proponents of anti-colonial self-determination. The emphasis was now placed on the right to external self-determination which insisted on people having a right to choose their international status. This remained the case throughout most of the Cold War period. Various United Nations General Assembly Resolutions, including the 1970 Declaration on Friendly Relations served as a legitimising force for the emergent predominance of the external dimension of self-determination. Western States were initially opposed to this new formulation of the concept. It was only when countries started making progress in their battle against colonialism that Western States took up the challenge and began to emphasise that the principle of self-determination ought to be interpreted as the right of peoples of every State to freely choose a government which meets their needs and aspirations. Inclusion of the principle of self-determination in the United Nations Covenants for Civil and Political Rights and Economic, Social and Cultural Rights 1966 provoked further debate. Those who were opposed to its inclusion put forward various reasons for their argument, such as the insistence that self-determination was a political principle and not a legal right. The principle was also argued to be too ill-defined and vague to be included in an international treaty and it was asserted that because self-determination is a collective principle, it could not fit into a treaty that dealt with individual rights. The principle of self-determination can be found in Article 1(1) of both Covenants. It states the following: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.What this actually means in practice is not clear. Which people are afforded a right under Article 1(1)? What is the scope of such a right? How is the right to be implemented? Exactly who the intended beneficiaries of this right are, is not explicitly stated. The notion of a ‘people’ has depended mainly on the context in which the right to self-determination has been invoked and has included former colonised peoples, citizens from a given State and self-identifying groups. Two approaches have been used to identify a people for the purposes of self-determination: the territorial approach and the characteristics approach. The territorial approach looks at all persons within a defined territory and identifies them as a people. It was used during the decolonisation era and was based on the principle of uti possidetis, which meant that colonies would become independent on the basis of established colonial boundaries. Self- determination was granted to peoples on the basis of the territorial (colonial) unit they belonged to. Uti Possidetis is a recognised legal principle of international law and was also applied following the dissolution of the Federal Republic of Yugoslavia and USSR. Through the application of this principle a people can qualify for self-determination and seek independence or a merger with another state if it constitutes the entire population residing within the internationally recognised borders of a territory where no other state exercises legitimate sovereignty. This approach has frequently been criticised for being too restrictive because equating the term “people” with “nation” fails to take into account the reality that several peoples can exist within the boundaries of a given territory. The characteristics approach on the other hand identifies a people by the common characteristics of its members. In 1989, during one of its expert meetings, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) identified ‘a people’ as a group of individual human beings who enjoy some or all of the following common features: a common historical tradition, a racial or ethnic identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection and a common economic life. It further stated that "the group as a whole must have the will to be identified as a people or the consciousness of being a people" and that the group may have institutions or other means of expressing its common characteristics and will for identity. The characteristics approach is frequently used by academics as a template for the definition of a people for the purposes of self-determination. It too has been criticised on the basis that defining a “people” based on ethnicity could be destabilising to multi-ethnic States. Interestingly, peoples who have qualified as a group under these terms have, for the most part, been granted the right to internal self-determination rather than a right to secession.Precisely what people achieve through self-determination is unclear and remains contested in international law. In practice, self-determination has ranged from secession and granting independence to a people from the parent state (external self-determination) through to granting a people the right to self-government or autonomy within the confines of their parent state (internal self-determination). Although there is no official stance on what self-determination entails, the right to secession has been strongly disfavoured under international law in order to protect the territorial integrity and political unity of existing states. Exceptions to this rule have traditionally applied to people under colonial domination or some kind of oppression. More recently the right to secede from a state has also been granted in situations where a people have been denied civil and political rights and subject to serious human rights abuses. Various attempts at widening the limited list of the no-secession rule have been made by minorities and territorial sub-units, however they have been largely unsuccessful. Critics contend that recognising a general right to secession not only undermines state sovereignty but could potentially lead to global chaos caused by the creation of micro-states and a continuous redrawing of boundaries.International political and legal bodies have generally remained neutral on the issue of self-determination. In its General Comment of Article 1, the Human Rights Committee acknowledges that the realisation of self-determination is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights, however the Committee states that it is up to individual Member States to decide how the principle is to be implemented. Interestingly the Committee observes that very little information is provided by Member States on self-determination and many just choose to ignore the concept altogether in their reports.The Human Rights Committee has also had the opportunity to provide further clarification on the right to self-determination through a number of communications submitted to it by a people alleging a breach of said right. In Communication No. 167/1984 for example, the leader of an Indian Cree band living within the borders of Canada (named the Lubicon Lake Band) alleged violation by the Government of Canada of the Lubicon Lake Band’s right to self-determination. He contended that the expropriation of land for commercial purposes accompanied by the destruction of the environmental and economic base of the Band would make it impossible for the Band to survive as a people and would thereby violate its right to self-determination. In its submission, the Human Rights Committee took a restrictive textual approach of interpretation. It held that “while all peoples have the right of self- determination […], as stipulated in Article 1 of the Covenant, the question whether the Lubicon Lake Band constitutes a “people” is not an issue for the Committee to address under the Optional Protocol to the Covenant since the complaints procedure is for individuals claiming a breach of their individual rights which are set out in Part III of the ICCPR, Articles 6 to 27 inclusive.” Since Article 1 deals with a right conferred on ‘peoples,’ an individual cannot claim a violation of his/her right to self-determination and therefore cannot bring the matter before the Committee. An analogous approach has been taken by the Human Rights Committee in subsequent similar communications submitted to it.The International Court of Justice (ICJ) has dealt with a number of cases concerning self-determination through the years and has recognised the concept as an essential principle of contemporary international law. However, like the Human Rights Committee it has avoided making any official pronouncement as to the content’s scope or content. In 2004 and 2010 the General Assembly asked the ICJ to address this issue in two separate circumstances, the first was in relation to the legal consequences of the construction of a wall in occupied Palestinian territory and the second was in relation to the accordance of international law of the unilateral declaration of independence in respect of Kosovo. The ICJ’s opinion regarding the Israeli Wall, reaffirmed the existence of ‘a Palestinian people’ and declared the wall’s construction a breach of the Palestinian peoples’ right to self-determination. Unfortunately, it provided no clarification as to the meaning of self-determination except for a reaffirmation of its status as an essential principle of international law.The Kosovo case was distinct from other cases addressed by the Court as it concerned the people of a special status territory declaring independence from the parent State. The issue before the Court was whether secession as part of the law of self-determination could apply to non-colonial situations. The Court noted that there were sharp disagreements as to 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.” The Court declined to find a solution to the issue, stating that it was unnecessary to do so in order to resolve the question posed to it by the General Assembly which concerned whether the declaration of independence by Kosovo was in accordance with international law. The Court ultimately found that Kosovo’s declaration of independence did not violate international law. This judgment was viewed by many as a missed opportunity by the ICJ to elaborate further on the principle of self-determination. Some have argued that by highlighting that there are differing views on this issue, the ICJ implicitly indicated that the right to self-determination does not extend to secession, due to the lack of any extensive and uniform opinio juris supporting such a right. Whether this is the case or not, the ICJ ultimately avoided dealing with the matter of secession by narrowly interpreting the question posed by the General Assembly. The “dilemma” of self-determination has been addressed and interpreted by other national and international legal bodies over the years. The Badinter Commission, which was set up by the Council of Ministers of the European Economic Community in 1991 to provide the Conference on Yugoslavia with legal advice, specifically stated that right to self-determination must not involve changes to existing frontiers (uti possidetis), except where States concerned agree otherwise. The Commission emphasised that peoples are given the right to internal self-determination within a State, but not the right to secede from it, in accordance with the principle of territorial integrity. Interestingly, in relation to the dissolution of the former Socialist Federal Republic of Yugoslavia, the Commission perceived this to be a breakdown of federal power sharing rather that an issue of self-determination. On similar lines to the Badinter Commission, the Canadian Supreme Court in the Secession of Quebec case emphasised that the right of a people to self-determination was expected to be exercised within the framework of existing States in order to prevent threats to a State's territorial integrity or the stability of relations between sovereign States.According to both bodies, the possibility of unilateral secession can only be entertained in extreme circumstances where serious human rights violations have been committed by the State against the people in question. Contemporary international law is still very much in line with the above interpretation of self-determination, with a strong emphasis on the importance of territorial sovereignty. Excluding instances of decolonisation or where a people is threatened with persecution by the parent state, the right to self-determination leading to independence has been greatly restricted. Instead of statehood, self-determination has generally been conceived of in terms of the right of peoples to political participation or the right to self-government within the existing boundaries of a country. A number of academics have linked this aspect of self-determination to the theory of democratic entitlement in international law. Franck perceived the common Article 1 of the two International Covenants as entitling “peoples in all states to free, fair and open participation in the democratic process of governance freely chosen by each state.”Kosovo’s unilateral declaration of independence from Serbia in 2008 has been singled out as a case sui generis, a form of “remedial secession” which was necessary because of the circumstances of the situation. This justification has not been universally accepted. Although Kosovo’s independence has been recognised by over 100 countries worldwide, including the US and most EU states, a number of United Nations member states, including China and Russia have refused to recognise it as a legitimate state, citing the importance of respect for the principle of territorial sovereignty as the primary reason for their position. In 2014, the regions of Crimea, Donetsk and Luhansk declared themselves independent from Ukraine. This development came about following the outcome of referenda, which sought to legitimise the regions’ intention to secede from the mainland territory. In each instance, there was a declaration to the effect that the peoples of Crimea, Donetsk and Luhansk had exercised their right to self-determination, a right conferred on them by international law. Both referendums and their outcomes were declared illegal and in breach of international norms and principles by the international community. Russia however officially recognised the outcome of the Crimean referendum claiming that the case of Kosovo had set a precedent which allowed Crimea to secede from Ukraine; its stance on the referenda in Donetsk and Luhansk was not as forthcoming, however Russia did ask for the outcome of the referenda to be respected.The next section of this article will provide a context for an examination of the 2014 referenda and their outcomes to consider whether they were valid instances of self-determination by way of secession.CrimeaCrimea is a peninsula located to the south of the Ukrainian mainland. Due to its strategically important location on the Black Sea, Crimea has been fought over by various outside forces through the centuries. Since it annexed the region in 1783, Russia has been the dominant power in Crimea for the large part of two hundred years. In 1954, the then Soviet Leader, Nikita Khrushchev ‘gifted’ Crimea to Ukraine. The transfer was supposedly made as a reward for loyalty during the process of de-Stalinization and to mark the three hundredth anniversary of Ukraine's merger with the Russian empire. When making the gift, Khrushchev had obviously not envisaged the collapse of the Soviet Union less than forty years later. Numerous ethnic Russians see this transfer as a historical wrong. Out of two million inhabitants, just under 60% identify themselves as ethnic Russians, 24% ethnic Ukrainians and the remainder are Tatars. Tatars are a Muslim minority who were once the majority on the peninsula but who suffered under Stalin’s regime and were deported for alleged collaboration with Nazi invaders during World War Two. Many Tatars returned to the peninsula in the 1980s and 1990s stirring tensions with Russians over claims to land. When the Soviet Union collapsed in 1991 many expected President Boris Yeltsin, the new president of the Russian Federation, to take Crimea for Russia – this however did not happen In 1992, Crimea was granted the status of autonomous republic within Ukraine. . The period between 1992 and 1994 was extremely unsettled between Ukraine and Russia. In July 1993, Russian Parliament controversially passed a resolution declaring the Crimean port city of Sevastopol a 'Federal Russian city'. This move was condemned by the Ukrainian parliament and most Western governments. The United Nations’ Security Council declared the resolution in violation of the UN Charter. Tensions were brought under control in 1994 when, alongside the UK and US, Russia signed the Budapest Memorandum declaring its commitment to respect the independence, sovereignty and existing borders of Ukraine. In 1997, the Treaty of Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation was signed. Under Article 2, the neighbours agreed to "respect each other's territorial integrity, and confirm the inviolability of the borders existing between them.” Alongside this treaty, separate agreements were also signed granting Russia a long lease of Crimean naval facilities and establishing two independent national fleets based in Sevastopol. Twenty years later, on the 16th March 2014, a referendum was held in Crimea to establish whether the region should secede from Ukraine and join Russia. The referendum took place amidst an ongoing political crisis between Russia and Ukraine. In late February 2014, following months of protests against the Ukraine government and days of violent clashes between police and protesters in Kiev, Ukraine President Yanukovych fled the capital and was unanimously removed from power by Parliament. Following Yanukovych’s impeachment, Olexander Turchynov was appointed interim President of Ukraine and Arsenly Yatsenyuk, Prime Minister of the new proposed government. Russian President Vladimir Putin was quick to denounce Yanukovuch’s impeachment as illegal and declared events in Kiev, tantamount to a coup d’état. On the 26th February, pro-Russian forces entered Crimea and seized key buildings in its capital, Simferopol. The Ukraine government accused Russia of aggression of its sovereign territory; a number of countries, including the US, warned Russia against military intervention in Ukraine. Russia responded stating that military movements in Crimea were in line with previous agreements to protect its fleet in the Black Sea. On the 1st of March, Russian Parliament approved Putin’s request to use force in Ukraine to protect Russian interests and the Russian speaking population of Eastern Ukraine and Crimea. On the 6th of March, the Crimean Supreme Council voted to formally accede to be part of the Russian Federation. A referendum was to follow within days to establish whether the Crimean people were in accordance with the Supreme Council’s decision. This move was immediately condemned by the Ukraine government as unconstitutional and illegal. This sentiment was echoed and supported by the United States and European Union. The United Nations’ Secretary General, Ban Ki-Moon expressed serious reservations about the referendum describing it as a worrying and serious development.Despite the controversy, the referendum took place on the 16th of March as scheduled. Those eligible to vote were asked whether they wanted to re-join Russia as a federal subject or if they wanted to restore the 1992 Crimean Constitution and Crimea’s status as a part of Ukraine. No option to maintain the status quo was given. Voter turnout to this referendum was reportedly at a record high according to election observers of the Eurasian Observatory For Democracy & Elections (EODE), invited by President Putin. The result, reported by the head of the referendum commission showed that 96.8% of voters were in favour of joining Russia. The US and EU immediately rejected the results of Crimea’s referendum and announced sanctions against a number of officials from Ukraine and Russia. On the 17th of March, the Crimean Parliament officially declared its independence from Ukraine and requested to become part of the Russian Federation. The following day President Putin delivered a speech justifying Russia’s actions in Ukraine and Crimea’s annexation to the Russian Federation. He outlined Russia’s strong historical ties with the Crimean region and claimed that Russia was responding to Crimea’s request for help because its Russian speaking population feared repression following events that had unfolded in the Ukraine. Putin went on to refute claims that Russia was acting in contravention of international law,. In relation to Crimea’s referendum and subsequent declaration of independence, Putin stated that the Crimean people were doing nothing more than exercising their right to self-determination granted to them by the United Nations Charter - a precedent which he claims was set by Ukraine when it seceded from the USSR and by Kosovo when it seceded from Serbia. Putin subsequently signed a treaty that officially recognised Crimea as part of the Russian Federation. The treaty has been declared invalid by Ukraine, the US and the EU Council. Because of its actions, Russia has been excluded from the G-8. The group justified its decision with the following statement:“International law prohibits the acquisition of part or all of another state's territory through coercion or force. To do so violates the principles upon which the international system is built. We condemn the illegal referendum held in Crimea in violation of Ukraine's constitution. We also strongly condemn Russia's illegal attempt to annex Crimea in contravention of international law and specific international obligations." Ukraine soon after the referendum submitted a draft resolution to the United Nations General Assembly that declared Crimea’s referendum invalid, a document that echoed the wording of a similar document that was submitted to the Security Council in early March but was vetoed by Russia. The draft document dismissed the referendum as "having no validity, (and) cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the City of Sevastopol." The UN General Assembly passed this resolution, entitled Territorial Integrity of Ukraine, on 27 March 2014. Although the resolution is not legally binding, it sent a strong political message to Russia that the wider international community condemned its actions in Crimea and Ukraine.Donetsk and LuhanskDonetsk Oblast and Luhansk Oblast are provinces located in the eastern Donbass region of Ukraine. Unlike Crimea, Donetsk and Luhansk have a different relationship with Russia. Crimea was part of Russia until 1954 and more than half of its population is ethnically Russian. Donetsk and Luhansk on the other hand have historically belonged to Ukraine and contain a majority ethnic Ukrainian population. During the imperialist Czarist era of the 19th Century, southern east Ukraine was conquered and made part of the Russian empire. The whole of this area, which includes Donetsk Oblast and Luhansk Oblast, was termed “Novorossiya” which in English translates to “New Russia.” President Putin used this term in April 2014, almost a month after Russia had invaded and annexed Crimea, impliedly suggesting that the annexation was justified because Crimea was in Novorossiya and therefore inherently part of Russia. He used the term later on in the year whilst addressing eastern Ukrainian rebels and identified them as the “militia of Novorossiya." Putin’s use of the term “Novorossiya” caused alarm and brought about speculation that Russia’s ultimate goal was to regain territories that were once regions of the New Russia. In fact following Crimea’s secession, in April 2014 pro-Russian rebels began occupying government buildings in the eastern region of Ukraine, including Donetsk and Luhansk, as a protest against the government in Kiev which they considered to be illegitimate. The rebels called for referenda on independence to be carried out in both cities and publicly demanded that Russia send “peacekeepers” to protect them. Ukraine troops began anti-terrorist military operations against the rebels who had begun occupying increasing portions of Donetsk and Luhansk. Hastily organised referenda were carried out on 11th May 2014, despite Russian President Putin’s call on the rebels to postpone them. The ballot papers in Ukrainian and Russian asked one question: "Do you support the Act of State Self-rule of the Donetsk People's Republic/Luhansk People's Republic?” Voter turnout was reportedly high and results showed that over 90% of voters in both Donetsk and Luhansk endorsed political independence from Kiev. The Peoples’ Republic of Luhansk and The Peoples’ Republic of Donetsk were subsequently declared as quasi- independent entities by rebel separatists. The referendum process and its outcome were widely criticised and declared illegal by Ukraine, the European Union and the USA. The Kremlin Press Service stated that “Moscow respected the outcome of the referendum and called for peaceful "practical implementation" of the people's wishes in those regions of eastern Ukraine.” Within hours of declaring itself independent, the Republic of Donetsk asked to join the Russian Federation, urging Moscow to listen to the will of the people. Russia has still not publicly responded to this request. Following the two referenda, violent clashes escalated between Ukraine militia and the separatist rebels. This led to the outbreak of a civil unrest in the eastern region of the Ukraine that has seen the loss of thousands of lives and caused numerous people to flee from their homes. On 5th September 2014, Ukraine and pro-Russian rebels signed a peace deal to end months of fighting. As part of the peace deal, on 16th September 2014, Ukraine granted self-status rule to Donetsk and Luhansk and offered an amnesty to separatist rebels involved in the eastern Ukraine conflict who were not guilty of serious crimes. Under the legislation, rebel-held parts of Ukraine's eastern Donetsk and Luhansk regions were to be granted a "special status," giving them broader autonomy for a temporary three-year period.Ukraine’s president, Petro Poroshenko, said the laws would guarantee the "sovereignty, territorial integrity and independence" of Ukraine, while paving the way towards a decentralisation of government, which had been among the demands by rebels. Representatives of the Donetsk and Luhansk Republics welcomed the laws as the start to peaceful dialogue with Ukraine; however they were vehemently against Donetsk and Luhansk remaining part of the country and sustained that “the eastern region has no longer anything to do with Ukraine.” The September 2014 ceasefire came to an abrupt end in October of the same year. Since then a second ceasefire was announced on 12th February 2015 with the promise of decentralisation and permanent special status for separatist held regimes. The situation in this region is still extremely precarious and countless lives have been lost as a result of the conflict.Russia’s approach to the Eastern Ukraine crisis in Donetsk and Luhansk, has been far less direct than with the situation in Crimea. Russia has repeatedly sustained that it has nothing to do with the pro-Russian rebels in eastern Ukraine and that any of its citizens and soldiers fighting with the rebels are doing so as volunteers. The Ukraine and Western governments on the other hand, have accused Russia of making a deliberate effort to support, and fight alongside, illegal separatists in another sovereign country.Are Crimea, Luhansk & Donetsk’s declarations of independence from the Ukraine examples of lawful self-determination in international law?The short answer to this question would appear to be, ‘No’. The Crimea, Luhansk and Donetsk are regions which belong to Ukraine’s sovereign territory. The Constitution of Ukraine does not provide for a right to secession, however Article 73 specifically states that any changes to Ukrainian territory can only be approved via a referendum where all the citizens of Ukraine are allowed to vote. The referenda which took place in March and May 2014 were held without the authority of the Ukraine government and were only for citizens of the regions concerned. Even if Ukraine had consented to the referenda, a period longer than a couple of weeks would have been necessary in order to make appropriate arrangements and to allow for meaningful discussions of the relevant issues to be put to vote. Scotland and Catalonia’s referenda were examples used by President Putin to justify the legitimacy of Crimea’s referendum on the 16th of March. Such comparisons are however flawed since preparations for the 2014 Scottish referendum and Catalonian referendum came about in an internally constitutional manner and following years of democratic debate and discussion. Self-determination by way of secession in international law has traditionally only been granted as a remedy to people in former colonial territories or under oppression. More recently, the concept of remedial secession has been used in non-colonial situations where a people has been persecuted and subjected to serious human rights violations by the parent State. This argument was partly used for the declaration of independence of Kosovo from Serbia where it was maintained that the relationship between the two parties was far too volatile to be resolved through domestic political structures. Despite unsubstantiated claims by Crimean politicians that the unconstitutional change of government in Kiev posed a threat to its people and that the Ukraine government was guilty of human rights violations, there is no plausible evidence to suggest that the people of Crimea, Donetsk and Luhansk were in any such danger. On the contrary, the Ukraine government has demonstrated itself willing to respect the internal self-determination of the people of these regions and grant them a wider autonomy. For example, in the early 1990s, it negotiated Crimea’s status as an autonomous territory with its own constitution and its own particularised local laws granted by the Crimean Parliament. During recent peace negotiations with separatist rebels in Luhansk and Donetsk, the Ukraine government, albeit under pressure, agreed to decentralise power and grant more autonomy to the Donetsk and Luhansk districts in the separatist Donbass region.Russia has played a central role in exacerbating the Ukraine crisis. Russian forces entered Ukraine territory in February 2014 in order to “assist” Crimea’s transition to independence and protect the Russian speaking population of Crimea. By so doing, Russia violated the jus cogens principle of non-use of force under Article 2(4) of the UN Charter. It also violated the "Declaration on Principles of International Law" (1970), adopted by the UN General Assembly, which declared illegal any territorial acquisition resulting from a threat or use of force. According to the ICJ Kosovo Advisory Opinion: “the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, 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).”Although a State may sympathise with a people who wish to secede from another State, this does not give the former any right to intervene in the territory of the latter.Ukraine was clearly the victim of an outside aggression when Russia sent armed forces onto its sovereign territory to “facilitate” Crimea’s independence and subsequent annexation to the Russian Federation.Regarding the outcome of all three referenda, Russia called upon the international community to recognise them as legitimate instances of self-determination. This stance is in sharp contrast to the one taken following Kosovo’s declaration of independence where Russia:Called for the respect of Serbia’s territorial sovereignty.Emphasised that self-determination of peoples by way of secession should only be recognised in extreme circumstances. Utilised the territorial approach for its definition of a people sustaining that the term represented the population of a State taken as a whole as opposed to sub-national groups. In fact, on the basis of this argument Russia did not recognise the citizens of Kosovo as a “people” for the purposes of self-determination because they were a sub-national group.Russia’s take on the situation in Crimea and Eastern Ukraine was decisively different. Under the premise that it was protecting Ukraine’s ethnic Russian population, Russia completely disregarded Ukraine’s territorial sovereignty by sending armed forces to Crimea;Russia recognised Crimea, Donetsk and Luhansk’s declarations of independence as valid instances of self-determination despite the fact they were in clear violation of the Ukraine constitution and the people of these regions did not find themselves in extreme circumstances. During his speech concerning the situation in Crimea, Putin referred to a quote in a written statement by the USA regarding Kosovo which stated that “declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” He sustained that the actions of the Crimean people fell well within this category and he could not understand why the international community was willing to accept this argument for the people of Kosovo but not for the people of Crimea.Putin identified the citizens of Crimea as a “people” and demanded that the international community recognise their right to self-determination. Without elaborating further on the term “people”, he referred to the common cultural heritage shared by the people of south-eastern Ukraine and Russia. Putin also mentioned that the Crimea was of historical and civilizational importance to Russia and that its reunification to the Russian Federation was vindication for the historical injustice of its handover sixty years earlier. By shifting its rhetorical stance on the issue of secession, Russia has taken advantage of the right to self-determination’s indeterminate nature and has strategically moulded the concept’s meaning to suit its own purpose and pursue its goal of maintaining control over former Soviet territories. ConclusionInconsistent interpretations of the right to self-determination have led to arbitrary applications of the concept in international law. The situation in eastern Ukraine is the most recent example of this. Due to the fairly wide-ranging nature of self-determination, state practice has traditionally limited its scope in order to safeguard the stability of the international state system. Self-determination by way of secession has consequently been granted only in exceptional circumstances.The events which took place in Crimea, Donetsk and Luhansk have potentially set a dangerous precedent regarding the circumstances in which self-determination by way of secession can be applied. Although the majority of the international community widely condemned what took place in these regions, Ukraine has been forced into a corner as a result of the conflict which is devastating its eastern territory. With regards to Crimea, it factually seceded from Ukraine and Russia annexed the territory as part of its Federation. Seven countries (including Russia) to this date have made statements about their recognition of the Republic of Crimea as a federal subject of the Russian Federation. Although most cited support for “the free will of the Crimean people,” as a reason for their stance, their actions were mainly motivated by political and economic interestsThe rest of the international community has either remained neutral or refused to recognise Crimea’s new status. With regards to Donetsk and Luhansk, the situation at the time of writing is still very unstable. Both regions have declared themselves independent from Ukraine, however their status has not been recognised by the international community. As a step towards resolving the current conflict, Ukraine has agreed to grant greater autonomy and confer special status to both regions, however an agreement has not yet been reached on this matter. In none of these regions were the people in circumstances which could be considered to be extreme for the purposes of secession in international law. Such arbitrary secessionist instances not only undermine the principle of territorial integrity, they also open the floodgates to potential conflicts and territorial struggles between people of a multinational stateAs a theoretical concept, self-determination is clearly attractive to “all peoples” from a human rights and democratic governance perspective; it is essential therefore that international law develops a more consistent approach with regards to how the concept is to operate in practice. State practice has accommodated the concept of self-determination in a variety of ways over the past seventy years:External self-determination was granted to people of former colonial territories based on the territorial boundaries they found themselves in;External self -determination has been granted as a “remedy” in circumstances where a people have faced persecution from the parent state and where realistic options for internal self -determination were exhausted. Examples include Bangladesh’s secession from Pakistan, Eritrea’s secession from Ethiopia and Kosovo’s secession from Serbia.External self-determination by way of negotiation has been recognised as a viable option in the advisory opinion issued at the request of the Canadian government where the court examined whether Quebec possessed a unilateral right to secede under either domestic or international law. The Court recognised that although unilateral secession is not permitted by the Canadian constitution, clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in the Confederation would have to recognize. The democratic vote of the people of Quebec to secede would require Canada to engage in serious negotiations regarding the possibility of separation. In 2014, the British government in fact demonstrated a willingness to engage with Scottish nationalists by holding a referendum intended to “deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect.” Opportunities for a peoples’ right to external self-determination have been limited to the afore-mentioned three examples. International law is clearly reluctant to widen the scope for secession, keen to preserve the primacy of the territorial integrity of states and fearful of the chaos it could potentially bring to the international order.The final way in which self-determination has been interpreted in international law is from an ‘internal’ perspective.Internal self-determination means the right to self-government within the confines of the parent state. Through this right people are able to participate and meaningfully contribute to the decision making processes that impact their lives. It allows them the possibility ‘to freely determine their political status and freely pursue their economic, social and cultural development’ without compromising the territorial integrity of the parent state. Internal self-determination gives a people the opportunity to deal with conflicts over minority and majority issues before they escalate to the stages of civil unrest or demands for secession. In some circumstances, internal self-determination can also include economic and cultural self-determination. In other words, the right of a people to be taught in their own language about their culture, history and tradition, as well as the right to economic independence. Examples of the practice of internal self-determination include the statutory granting of powers from the UK Parliament to the Scottish Parliament and the National Assembly for Wales, or Ukraine’s conferral of autonomous status to Crimea in 1991. In considering possible avenues for the concept of self-determination in international law it would seem that from both a theoretical and practical perspective, internal self-determination is the most feasible way forward. Societal structures which permit group interaction and representation, based on compromise rather than confrontation are better suited in accommodating pluralistic societies. By widening opportunities for internal self-determination, States create a fairer and more inclusive environment that safeguards the interests of all peoples and is reflective of democratic values and human rights. Meanwhile, to maintain the status quo is no longer defensible, if it ever was. Without an unambiguous legal position outlining what the right to self-determination entails, the concept will be disputed and will be wilfully misinterpreted by superpowers intent on pursuing their own agendas. The Ukraine crisis, where thousands of lives have been lost to date, is a demonstration of the real danger that the unresolved dilemma of self-determination presents to the international order ................
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