The Right To Self-Determination - A Case Study of The Crimean Secession PDF

The Right to Self-Determination:
A Case Study of the Crimean

Secession
Thesis
LL.M. International and European Law: Human Rights Law
By: M.C.J. van Tilborg

ANR: 523554
Supervisor: Mrs. mr.dr. A.K. Meijknecht
Table of content
Introduction ........................................................................................................................................... 3
1. Self-determination under international law .................................................................................... 6
1.1 Historical development.................................................................................................................. 6
1.2 Status and Scope in contemporary international law..................................................................... 8
1.3 The people ................................................................................................................................ 12
1.4 Conclusion ................................................................................................................................... 13
2. The Crimean people and their right to self-determination.......................................................... 15
2.1 History of the Crimea and its population .................................................................................... 15
2.2 The Crimean people .................................................................................................................. 17
2.3 The exercise of self-determination by Crimea ............................................................................ 19
2.4 Conclusion ................................................................................................................................... 20
3. The secession and the role of Russia .............................................................................................. 22
3.1 The free expression of the will of the people .............................................................................. 22
3.2 Assistance from a third state........................................................................................................ 25
3.3 Conclusion ................................................................................................................................... 27
4. The territorial integrity of Ukraine ............................................................................................... 29
4.1 Territorial integrity and self-determination ................................................................................. 29
4.2 The Advisory Opinion on Kosovo by the International Court of Justice .................................... 32
4.3 Conclusion ................................................................................................................................... 33
5. The rights of others as a limitation to self-determination............................................................ 35
5.1 The rights of Crimean Tatars....................................................................................................... 35
5.2 Conclusion ................................................................................................................................... 39
Conclusion ............................................................................................................................................ 40
Bibliography ........................................................................................................................................ 44
Introduction
At the moment I am starting to write this thesis, in February 2015, it has been almost exactly a year
since the events that became known as the Ukrainian Revolution of 2014 have transpired. The unrest
in Ukraine started in November 2013, when the former president Viktor Yanukovych chose an
economic deal with Russia over a deal with the European Union.1 The choice of the pro-Russian
Yanukovych sparked protest on Maidan (Independence Square) in the capital Kiev. 2 After
Yanukovych tried to quash these protests in a violent manner, the protest only spread and evolved into
a nationwide protest movement against the corruption that Yanukovychs government symbolized. 3
Eventually the movement became a revolution in February 2014, when Yanukovych was more or less
forced to leave his office and flee.4 But this did not bring an end to the unrest. A counter-movement
that opposed the change of power in Kiev sprung up in Eastern Ukraine, the part of Ukraine that is
most oriented towards Russia.5 Now we are a year later and the eyes of the world mostly rest on the
provinces of Donetsk and Luhansk in the east of Ukraine, where the counter movement against the
Ukrainian Revolution has turned into a civil war between pro-Russian separatists and the Ukrainian
military.6 The Minsk II agreement, in which the fighting parties agreed on a truce and the moving of
heavy weaponry away from the frontline, has just been signed but the hostilities seem to continue.7
The ongoing violence in Eastern Ukraine almost seems to divert the attention away from the other
Ukrainian province that got heavily involved in the aftermath of the Ukrainian Revolution. This
province is the Autonomous Republic Crimea, located in the south of Ukraine on a peninsula
bordering the Black Sea. In late February 2014 pro-Russian gunmen seized important buildings in
Simferopol (the Crimean capital) and made changes in the composition of the Crimean parliament.8
Yuhas, A., Ukraine crisis: an essential guide to everything thats happened so far, The Guardian, (13 April 2014),
available at: http://www.theguardian.com/world/2014/apr/11/ukraine-russia-crimea-sanctions-us-eu-guide-explainer
[accessed 29 May 2015]
2
3
4
Higgins, A., With Presidents Departure, Ukraine Looks Towards a Murky Future, New York Times, (22 February 2014),
available at: http://www.nytimes.com/2014/02/23/world/europe/with-presidents-departure-ukraine-looks-toward-a-murkyfuture.html?action=click&contentCollection=Europe&module=RelatedCoverage&region=Marginalia&pgtype=article
5
6
BBC News, Ukraine crisis in maps, (18 February 2015), available at: http://www.bbc.com/news/world-europe-27308526
7
BBC News, Ukraine crisis: Leaders agree peace roadmap, (12 February 2015), available at:
http://www.bbc.com/news/world-europe-31435812 [accessed 29 May 2015]
8
This new parliament made an immediate impact on the future of the Crimea, through a vote to join
Russia and a call for a referendum on that subject, with corresponding claims by Crimea and Russia
that it is a legitimate exercise of their right to self-determination.9 After the referendum was held on 16
March 2014, the Crimean authorities declared their independence from Ukraine on 17 March 2014.10
That is where we arrive at the topic of this thesis. It is a case study on the right to selfdetermination of Crimea. The aim is to research whether Crimea has a right to self-determination
under international law, and whether there is any legality in the Crimean secession from Ukraine,
based on the right to self-determination. The thesis consists of five chapters and a conclusion. The first
chapter is used to introduce the right to self-determination and its position in contemporary
international law. I describe the history of self-determination and how it has evolved from a political
principle into a right. I then continue to formulate its contemporary position, how self-determination
can be exercised and what the limitations on that exercise are. I finish the first chapter with an
elaboration on those that have the right to self-determination: the people. I describe how and when a
plurality of persons can be seen as a people. The second chapter will focus on Crimea. I start by
describing the history of the peninsula, and which consequences this history has for the composition of
the Crimean population. I then analyse whether the Crimean population can be seen as a people with a
right to self-determination. The last paragraph of the second chapter will focus on the inclination in
international law towards an internal exercise of self-determination, and which consequences this has
for the right to self-determination of Crimea and the way to exercise that right. This chapter will thus
ultimately answer whether Crimea has a right to self-determination under international law. The third,
fourth and fifth chapters are subsequently used to provide a more in-depth account of the separate
requirements and limitations of the right to self-determination which are already briefly described in
chapter one, and I interpret the Crimean secession in light of these requirements and limitations. The
third chapter will elaborate on the Crimean referendum and the rules that international law poses for
third-state assistance in the exercise of self-determination. This chapter is essentially an analysis of the
role that the Russian Federation has played in the Crimean secession. I start with the requirement that
self-determination should be exercised through the free and genuine expression of the will of the
people, and analyse whether the Crimean referendum of 16 March 2014, in which a large majority
chose to secede from Ukraine and become a part of the Russian Federation, fulfills this requirement.
Subsequently I will elaborate on the possibility for a people to receive third-state assistance in
exercising self-determination. Third-state assistance is bound to specific circumstances and it has
limitations, so an analysis of the Russian assistance to Crimea in light of these circumstances and
limitations will show whether that assistance was legitimate. The fourth chapter will show how the
Crimean secession should be seen in light of the principle of territorial integrity. I first elaborate on the
9
Baker, P., Sovereignty vs. Self-Rule: Crimea Reignites Battle, New York Times, (8 March 2014), available at:
http://www.nytimes.com/2014/03/09/world/europe/crimea-crisis-revives-issue-of-secessions-legitimacy.html
10
BBC News, Crimean parliament formally applies to join Russia, (17 March 2014), available at:
principle of territorial integrity, which is one of the core principles of international law. I then describe
how territorial integrity and self-determination are balanced in international law. What follows is an
analysis of the Crimean secession, based on a claim to self-determination, in light of this balance. The
second paragraph of this chapter will focus on the views on territorial integrity that the ICJ gave in the
Kosovo Advisory Opinion. The fifth chapter will focus on how rights of others may limit the right to
self-determination. The chapter will start with a description of the limitation that rights of others
impose upon the right to self-determination, including examples from previous cases to provide how
this limitation works in situations where a people claims or exercises external self-determination. In
the case of the Crimean secession I will use the right of Crimean Tatars, who are a significant minority
group on the peninsula, as an example to illustrate how rights of others should be taken into account to
achieve a legal exercise of self-determination. I will finish with a conclusion in which I will
summarise the findings from the separate chapters. Then I present a final conclusion on whether
Crimea has a right to self-determination, how this right should be exercised, and how the Crimean
secession should be judged in light of the requirements and limitations that international law imposes
upon the right to self-determination. Ultimately I will also use the research for this case study to
present my view on the position and clarity of the right to self-determination in contemporary
international law and what influence the Crimean case may have.
1. Self-determination under international law

Before, during and after the secession of the Crimea from Ukraine and its incorporation as a province
of the Russian Federation the parties who were in favour of this secession, the separatists in the
Crimea and the Russian Federation in particular, claimed that it was the right of the people of the
Crimea to choose for secession on the basis of their right to self-determination. They claim that the
referendum was a legitimate way of exercising the right to self-determination of peoples. In order to
determine if this claim is legitimate, it is necessary to explore the position and meaning of selfdetermination under international law in this first chapter. The first paragraph of this chapter is used to
describe the historical development of self-determination. In the second paragraph the focus will be on
the status and scope of self-determination in modern international law, how it is exercised and what
the limitations on exercise are. The third paragraph of the chapter is aimed at describing those that
have the right to self-determination, the people. This will provide an adequate overview on the right
to self-determination of peoples and its position in international law, which is necessary to properly
analyse the claims made by those who instigated, and are in favour of, the secession of the Crimea
from Ukraine and its incorporation into the Russian Federation.
1.1 Historical development

Even though the political principle of what we now call self-determination can be traced back far into
the history of mankind, as far back as the early stages of the institution of government according to
some,11 it is commonly accepted that the starting point for the development of the right to selfdetermination into the principle it has now become was the French Revolution of 1789. This
revolution introduced a new collective right, namely the right of nations to rule over themselves and
thus to create new states out of the existing states.12 In the nineteenth century this idea of selfdetermination was used by nationalist movements in Europe to overthrow foreign ruling dynasties
(like the Spanish Bourbons in Naples and Sicily) or to put together new, larger political entities (the
formation of the German Empire and the unification of Italy). These examples of the use of the
principle can thus be seen as national self-determination, or self-determination of the nation.13 The
transformation from the political national self-determination into the legal right to self-determination
of peoples started in the early twentieth century, when the first important references to the right to selfdetermination in the Western World were made by Woodrow Wilson, President of the United States
11
McCorquodale, R., Groups Rights, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights
Law, Second Edition, Oxford University Press, Oxford, 2014, p. 335.
12
Pavkovi, A. and Radan, P., In Pursuit Of Sovereignty And Self-Determination: Peoples, States And Secession In The
International Order, Macquarie Law Journal, Vol. 3, (2003), p. 1.
13
McWhinney, E., Self-Determination of Peoples and Plural-Ethnic States in Contemporary International Law. Failed
States, Nation-building and the Alternative, Federal Option, Martinus Nijhoff Publishers, Leiden, 2007, pp. 1-2.
from 1913 to 1921.14 He furthered the notion of the right to self-determination by warning statesmen
of the peril of ignoring that right.15 At about the same time that Wilson started his campaign to bring
the right to self-determination under the attention of the Western World at the end of World War I, the
Marxist ideas on national liberation took root in the USSR. The combined effect was that selfdetermination, despite it still being a rather vague concept, became an accepted term of use in
international relations.16 However, it should be noted that self-determination was not recognised as a
general principle in the Covenant of the League of Nations.17 This means that even though the term
became accepted, it still did not have a legal foothold in international law. It was only after the end of
World War II that self-determination developed further, to gain a more prominent role in international
affairs as a legal norm.
In the UN Charter, signed in the summer of 1945 while the war was not even at its end, selfdetermination is featured in the purposes of the UN, in Article 1(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.18 This can be seen as the first true
recognition of self-determination in a major international document.19 It was also the first time that the
word peoples was used in association with self-determination.20 In the UN Charter it is also apparent
that self-determination was, at that time, seen first and foremost in relation to decolonisation. This is to
be deduced from its implied inclusion in Chapter XII on the Trusteeship System (designed for former
colonies), and especially in Article 76 (b) of the Charter, which declares as an objective of this
Trusteeship to promoteprogressive development towards self-government or independence as may
be appropriate to the particular circumstances of each territory and its peoples and the freely expressed
wishes of the peoples concerned21. And the colonial dominions also saw self-determination as a way
to free themselves from colonial rule, or as McWhinney puts it: Self-determination of peoples
became the legal rubric in terms of which local, indigenous political movements in European Colonial
territories overseas sought to legitimate their claims for breakaway from the parent Imperial country
or, less than that, for autonomy and self-governance within those same states.22 In the first decades of
14
Hanna, R.M., Right to Self-Determination in In Re Secession of Quebec, Maryland Journal of International Law, Vol.
23, Issue 1, (1999), p. 225.
15
Castellino, J., International Law and Self-Determination: Peoples, Indigenous Peoples, and Minorities, in: Walter, C., von
Ungern-Sternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University
Press, Oxford, 2014, p. 29.
16
17
McWhinney, E., Self-Determination of Peoples and Plural-Ethnic States in Contemporary International Law: Failed
States, Nation-building and the Alternative, Federal Option, Martinus Nijhoff Publishers, Leiden, 2007, p. 3.
18
United Nations, Charter of the United Nations, 24 October 1945, available at:
http://www.un.org/en/documents/charter/index.shtml [accessed 3 March 2015], (emphasis added)
19
Hannum, H., Self-Determination in the Post-Colonial Era, in: Clark, D. and Williamson, R. (eds.), Self-Determination:
International Perspectives, Macmillan Press, London, 1996, p. 17
20
Radan, P., The Break-up of Yugoslavia and International Law, Routledge, London and New York, 2002, p. 30.
21
http://www.un.org/en/documents/charter/index.shtml [accessed 3 March 2015]
22
McWhinney, E., Self-Determination of Peoples and Plural-Ethnic States in Contemporary International Law. Failed
States, Nation-building and the Alternative, Federal Option, Martinus Nijhoff Publishers, Leiden, 2007, p. 2.
its existence, the UN kept linking the right to self-determination to colonialism. This is demonstrated
by three important Resolutions of the UN General Assembly, which all feature self-determination in
the context of decolonization23. In the 1960 Declaration on the Granting of Independence to Colonial
Countries and Peoples it is, for example, basically made clear that all colonial territories have the right
to independence, through the right to self-determination.24
During those years another important step in the development of the right to self-determination
was made when the transformation from a political principle into a legal norm was finally completed
with the incorporation of the right to self-determination as the first human right in the Covenants of
Human Rights in 1966.25 This, in combination with the aforementioned incorporation in the UN
Charter and UNGA Resolutions laid the foundation for the right to self-determination of all peoples in
contemporary international law. It was the first establishment of a universal right to self-determination
for all peoples26. In the decades that followed self-determination came to be seen more and more
separated from its colonial context. This can, for example, be observed in a declaration on the subject
by the Organisation of Security and Co-operation in Europe (OSCE) in which self-determination is
mentioned in conjunction with the right of all peoples.27 It also became clear in state practice that the
right to self-determination was a not only a right in a colonial context. A significant example of the
universality of the right to self-determination in state practice is the unification of Germany in 1990.
When East- and West-Germany united, it was stated in a treaty that was signed by four of the five
permanent member of the UN Security Council that this was done through the exercise of selfdetermination by the German people.28 Thus, the right to self-determination has developed from being
a political principle of national self-determination into a right to self-determination for colonial
peoples and finally into a universal right to self-determination for all peoples on the earth.
1.2 Status and Scope in contemporary international law

The legal definition of the right to self-determination as a human right can be found in the Common
Article 1 of the ICCPR and the ICESCR:
1. 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.
23
Declaration on the Granting of Independence to Colonial Countries and Peoples, UN GAOR 1514 (XV), 14 December
1960, A/RES/1514 (XV); UN GAOR 1541 (XV), 15 December 1960, A/RES/1541 (XV); Declaration on Principles of
International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United
Nations, UN GAOR 2625 (XXV), 24 October 1970, A/RES/2625 (XXV).
24
International Perspectives, Macmillan Press, London, 1996, p. 17.
25
Castellino, J., International Law and Self-Determination: Peoples, Indigenous Peoples, and Minorities, in: Walter, C., von
Ungern-Sternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University
Press, Oxford, 2014, p. 30.
26
Radan, P., The Break-up of Yugoslavia and International Law, Routledge, London and New York, 2002, p. 45.
27
Final Act of the Conference on Security and Co-operation in Europe (Helsinki Final Act), 1 August 1975, 14 ILM 1292,
(1975), Principle VIII.
28
Treaty on the Final Settlement With Respect to Germany, 12 September 1990, 29 ILM 1186, (1990), p. 1188.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In no case may a people be deprived
of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote the realization of the
right of self-determination, and shall respect that right, in conformity with the provisions of the
Charter of the United Nations.29
In all subsequent international and regional human rights documents that contain a right to selfdetermination the definition of Article 1(1) is largely repeated.30 The UN Human Rights Committee
(HRC) explained why the right to self-determination is placed in Article 1 of both the Covenants as
the first human right. It stated that: The right of self-determination is of particular importance because
its realization is an essential condition for the effective guarantee and observance of individual human
rights and for the promotion and strengthening of those rights. It is for that reason that Statesplaced
this provision as article 1 apart from and before all of the other rights in the two Covenants.31 This
comment by the HRC provides an insight in the importance of the right to self-determination in
contemporary international law, especially in relation to the ability to exercise other human rights. The
ICJ has subsequently declared that the right to self-determination is one of the essential principles of
contemporary international law and has an erga omnes character.32
The methods of exercising the right to self-determination are first found in the Declaration on
Principles of International Law, which provides: The establishment of a sovereign and independent
State, the free association or integration with an independent State or the emergence into any other
political status freely determined by a people constitute modes of implementing the right of selfdetermination by that people.33 These exercises of self-determination can all be seen as forms of
external self-determination, because there has been a change not only in relation to the original state,
but also in relation to the international community.34 Self-determination can also be exercised by a
people without changing its external relationships; it can happen within the state. The Declaration on
Principles of International Law stipulates this internal form of self-determination as states being:
possessed of a government representing the whole people belonging to the territory without
29
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, UNTS, vol. 999, p. 171;
UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS, vol.
993, p. 3
30
31
UN Human Rights Committee, CCPR General Comment 12, 13 March 1984, HRI/GEN/1/Rev.9 (Vol I) p. 183, para 1.
32
Case Concerning East Timor (Portugal v. Australia), International Court of Justice (ICJ), 30 June 1995, I.C.J. Reports
1995, p. 90, para 29.
33
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance
with the Charter of the United Nations, UN GAOR 2625 (XXV), 24 October 1970, A/RES/2625 (XXV).
34
distinction as to race, creed or colour.35 Outside the colonial context, internal self-determination is the
way to go in the international community; it provides a far more pleasing solution for states then
endless claims to external forms of self-determination such as independence and secession.36 This
internal self-determination can take on many forms, ranging from forms of autonomy to federalist
constructions of states.37 While this is the preferred way of exercising self-determination, it does not
mean that external self-determination is not possible anymore. It may even prove to be necessary in
some cases to reach the goal of achieving self-determination.38 It is, however, by far not the first
option in situations where there is a claim for self-determination, or as the Canadian Supreme Court
stated it: A right to external self-determination (which in this case potentially takes the form of the
assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then,
under carefully defined circumstances.39 The exercise of the right to self-determination must happen
through the people themselves, or as the International Court of Justice stated: the application of the
right of self-determination requires a free and genuine expression of the will of the peoples
concerned.40 The normal way in which this can proceed is, of course, through general or special
elections, or possibly a referendum41.
In the exercise of the right to self-determination there are a number of limitations that are
recognised as such under international law. The first of these limitations is the rights of others. In
order to take into account the rights of other people, a people can be limited in its exercise of the right
to self-determination.42 An example of this limitation is given by the Canadian Supreme Court in a
case regarding the potential secession of the province of Qubec from Canada (through the exercise of
the right to self-determination). In this case the Supreme Court took into account the rights of the
aboriginal peoples residing in the northern parts of the province and who, as indigenous peoples, also
have certain group rights which have to be taken into account when there would be an exercise of selfdetermination.43 The second limitation to self-determination is territorial integrity. Territorial integrity,
which asserts that the territory of a state will not be altered without its consent, is based on keeping
international peace and security.44 It is one of the main principles of international law, enshrined in
35
36
Oeter, S., The Role of Recognition and Non-Recognition with Regard to Secession, in: Walter, C., von UngernSternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University Press,
Oxford, 2014, p. 56.
37
Weller, M. Settling Self-determination Conflicts: Recent Developments, EJIL, Vol. 20, No. 1, (2009), pp. 114-115.
38
39
Canadian Supreme Court, Reference Re Secession of Qubec, 20 August 1998, (1998) 2 S.C.R. 217, para 126.
40
Western Sahara Advisory Opinion, International Court of Justice (ICJ), 16 October 1975, I.C.J. Reports 1975, p. 12, para
55.
41
42
43
Canadian Supreme Court, Reference re Secession of Quebec, 20 August 1998, (1998) 2 S.C.R. 217, para 139.
44
10
Article 2(4) of the UN Charter45. This is the limitation that, under contemporary international law
blocks almost all claims of secession because they obviously violate this principle. 46 The result of the
precedence of territorial integrity over self-determination is the legal assumption that selfdetermination is bound in constructions of federation or autonomy.47 It is, however, argued that
territorial integrity can only be a legally justifiable limitation on the exercise of external selfdetermination when a state already enables full internal self-determination for those people seeking
external self-determination.48 That would then be a case of the extreme situation, spoken about earlier
in this chapter, in which external self-determination would be allowed in certain circumstances and
where it would be the only option left. One last important limitation I would like to set out here is that
of use of force and support of third states. It is not unusual for situations in which peoples are seeking
to exercise their right to self-determination to involve the use of force, either by or against those
peoples. This limitation is made clear in the Declaration on Principles of International Law, which
provides that:
Every State has the duty to refrain from any forcible action which deprives peoples referred to
above in the elaboration of the present principle of their right to self-determination and freedom and
independence. In their actions against, and resistance to, such forcible action in pursuit of the
exercise of their right to self-determination, such peoples are entitled to seek and to receive support
in accordance with the purposes and principles of the Charter. 49
What this part provides is that the peoples who seek to exercise their right to self-determination may
receive support from other states if forcible action is taken against them as a people, but this should be
in line with the purposes and principles of the UN Charter.50 This means that a state, in supporting
these peoples may for example not violate the territorial integrity or political independence of another
state, as proclaimed in Article 2(4) of the Charter.51 Or in other words, it may not send any troops to
occupy an area of another state in order to support a people in their exercise of the right to selfdetermination. Thus, this is a limitation for third countries when supporting a people seeking self-
45
46
Hanna, R.M., Right to Self-Determination in In Re Secession of Quebec, Maryland Journal of International Law, Vol.
23, Issue 1, (1999), p. 230.
47
Oxford, 2014, p. 56.
48
49
50
Law, Second Edition, University Press, Oxford, 2014, p. 348.
51
11
determination. These are three important limitations on the right to self-determination that need to be
considered when analysing a situation which involves the exercise of that right.
1.3 The people

It is thus established how the right to self-determination has evolved from political to legal principle
and from its colonial context into a universal right. It is also set out how it is exercised and what the
limitations on its exercise are. But who are those that have this right, what exactly is a people? It is
not always readily apparent how the distinction should be made between a people with a right to
self-determination and similar groups, such as indigenous groups or minorities, who are not generally
seen as having that right.52 However, there are some that believe that, in certain circumstances,
national groups or minorities should be granted a right to self-determination and thus be looked at as
a people in this context.53 This means that there are many definitions given in this regard by expert
groups and scholars, but there is not one objective definition to be found in any of the international
legal instruments mentioned in this chapter, and there is, until this day no universal consensus on a
definition. A definition that comes closest to being accepted worldwide and that is often referred to is
that of an important group of UNESCO experts:
1. A group of individual human beings who enjoy some or all of the following common features:
(a) a common historical tradition;
(b) racial or ethnic identity;
(c) cultural homogeneity;
(d) linguistic unity;
(e) religious or ideological affinity;
(f) territorial connection; and
(g) common economic life.
2. The group must be of a certain number who need not be large (e.g. the people of micro states) but
which must be more than a mere association of individuals within a state;
3. The group as a whole must have the will to be identified or consciousness as a people allowing
that some groups or some members of such group, though sharing the foregoing characteristics,
may not have that will or consciousness; and possibly
4. The group must have institutions or other means of expressing its common characteristics and will
for identity.54
This definition could be used to consider whether there is a people when the question inevitably rises
in a situation where the right to self-determination is claimed. But often it is not even needed to have a
52
53
Radan, P., The Break-up of Yugoslavia and International Law, Routledge, London and New York, 2002, pp. 10-11.
54
Final Report and Recommendations of an International Meeting of Experts on the Further Study of the Concept of the
Right of People for UNESCO, 22 February 1990, SNS-89/CONF.602/7.
12
definition that is generally agreed upon. Sometimes it is obvious that a certain group is a people with
a right to self-determination. This can be in cases where the constitution, legislation or practice of a
state indicates a specified group as a people.55 So determining whether a certain group can be seen as
a people with a right to self-determination is really something that should be done on a case-by-case
basis, where attention should first go to establishing if there is any mention or treatment of a specific
group as a distinct people in official documents or state practice. If this is not the case, the UNESCO
definition may provide a useful insight.
1.4 Conclusion
The right to self-determination of peoples in contemporary international law has been developed out of
the notion of national self-determination created in Europe through the French Revolution. This
national self-determination inspired nationalist movements throughout the nineteenth and the
beginning of the twentieth century. After World War II it evolved into a right to self-determination of
peoples in a colonial context. The importance of the right to self-determination in contemporary
international law can be deduced from the fact that it features prominently in the UN Charter, the UN
Declaration on Human Rights and the two most important human rights treaties, the ICCPR and
ICESCR. This last step completed the transformation of self-determination from a political concept
into the legal norm we know today: the right to self-determination of peoples. The exercise of the right
to self-determination can be either external or internal. In the colonial context self-determination was
mostly sought, by peoples themselves as well as in international documents, through independence or
other forms of external self-determination. Outside of the colonial context the preferred method is
internal self-determination. This can consist of sufficient political participation, federal constructions
or a form of autonomy for a specific region. External self-determination, in the form of secession, can
only be possibly recognised as a legitimate way of exercising self-determination if all other
possibilities of self-determination are made impossible. The exercise must be by the peoples
themselves, it must be an expression of their common will as a group. This can for example be
achieved through elections or a referendum. There are a few limitations on the use of the right to selfdetermination, such as the rights of others, territorial integrity of states and limitations on the use of
force. These limitations need to be taken into account in a situation that involves the possible exercise
of that right. The term a people, the plurality of persons that has the right to self-determination as a
group, doesnt have an objective definition in law. The definition by a group of UNESCO experts
given in this chapter is the one which comes closest to being objective. Sometimes it may not be
necessary to have a definition, because the group in question is recognised as a people in
constitutional or legal documents, or through state practice. In analysing the situation of the Crimean
secession from Ukraine this chapter provides the framework through which the Crimean and Russian
55
13
claims need to be scrutinised in the following chapters, in order to see if they have exercised their right
to self-determination of peoples in a legally just way. In chapter two the attention will be on whether
the Crimean population can be considered as a people in the context of the right to self-determination
and how they can exercise that right. Chapter three will focus on the referendum as an expression of
free will and the role of Russia in supporting the secession. In chapter four I will analyse the limitation
of territorial integrity on the right to self-determination in relation to the Crimea. Chapter five will
determine how the Crimean secession has impacted the rights of others.
14
2. The Crimean people and their right to selfdetermination

After describing the evolution of the right to self-determination and its position in contemporary
international law in the previous chapter, it is time to focus the attention on the Crimea. This chapter
will focus on the Crimean population and their right to self-determination. In the first paragraph I have
set out the history of the Crimea and its population. It is by no means a full historical account of the
peninsula, for which this paper is not the place, but rather an illustration of the important moments in
the history of the Crimea to place the situation surrounding the secession in a historical context. In the
second paragraph, I describe whether there exists a Crimean people with a right to self-determination
by combining the history and situation of the Crimean population with the contemporary views on the
existence of a people in the context of the right to self-determination. The third paragraph will focus
on the preference in international law for the internal exercise of self-determination, with external
variants only existing as a last resort. This, in combination with an analysis of the situation in the
Crimea prior to the referendum, will establish whether that situation called for external selfdetermination (in the form of unilateral secession) as the last resort, or whether the preferred internal
self-determination was still possible. The aim of this chapter is to establish whether the Crimea has a
right to self-determination, and whether the external exercise of that right was a legally acceptable step
to take in March 2014.
2.1 History of the Crimea and its population

Through the ages the Crimean peninsula has been inhabited by many different peoples. Well known
peoples such as the ancient Greeks, the Scythians and the Huns have been occupants of (parts of) the
peninsula.56 The Crimea was united in the mid fifteenth century under the rule of Tatar ruler Khan
Haci Giray who created a dynasty that ruled the Crimea, for a large part as a protectorate of the
Ottoman Empire, until the Russian annexation of the peninsula in 1783.57 The Crimean Tatars had thus
ruled the Crimea for more than three hundred years. Immediately after the annexation and during the
rule of the Russian Empire the Crimean Tatar population declined and, through migration from other
parts of the Empire, the population of Russians (and other Slav peoples) increased significantly. 58 Of
course it is well known that eventually the Russian Empire ended to exist in 1917, when the Bolshevik
Revolution drastically changed the nation. During the ensuing civil war the Crimea experienced many
forms of government, with different levels of autonomy, until it eventually became a part of the Soviet
56
Clement Hall, M., The Crimea A Very Short History, M. Clement Hall, 2014, p. 8.
Kuzio, T., Ukraine Crimea Russia: Triangle of Conflict, ibidem-Verlag, Stuttgart, 2007, p. 99.
58
Kuzio, T., Ukraine Crimea Russia: Triangle of Conflict, ibidem-Verlag, Stuttgart, 2007, pp. 99-100.
57
15
Union as the Crimean Autonomous Soviet Socialist Republic (ASSR) in 1921.59 In May 1944 the
Tatars, of which a reasonable number had remained on the peninsula during Russian rule, disappeared
completely from the Crimea. They were deported to other parts of the Soviet Union in Central Asia
and Siberia, because Joseph Stalin believed they had collaborated with the Nazis during World War
II.60 The other punishment for that alleged collaboration was stripping the Crimea from its status as
Autonomous Soviet Socialist Republic, and making it a normal region (oblast) under Soviet rule in
1945.61
The pivotal event in the history of the Crimea with regard to the events of March 2014 is its
transfer from the Russian Soviet Federative Socialist Republic (RSFSR) to the Ukrainian Soviet
Socialist Republic (Ukrainian SSR) in 1954. It was proposed to transfer the Crimea in a decree by the
RSFSR Council of Ministers, in which it cited as reasons for a transfer: the territorial inclination of
the Crimean Oblast' toward the Ukrainian SSR, the commonality of the economy, and close economic
and cultural ties between the Crimean Oblast' and the Ukrainian SSR62. While this is the official
reasoning given in the decree, it is considered that the idea of the transfer had actually been
masterminded by Nikita Khrushchev who, besides the motive of economic restructuring of the Soviet
Union, also had the political motive of garnering support from the Ukrainian SSR in his power
struggle to become leader of the Soviet Union.63 After the transfer, the Crimea remained a part of the
Ukrainian SSR until 1991. In the beginning of that year the Crimean local authorities arranged a
referendum on (re-)establishing the Crimea as an ASSR which garnered massive support of the
population, and the outcome of which was that on 12 February 1991 the Ukrainian SSR authorities
conferred the status of ASSR on the peninsula.64 At the end of that same year, the Soviet Union
collapsed and Ukraine became an independent nation. Even though there were difficulties between the
newly established Ukrainian government and the Crimean authorities, they eventually reached an
agreement on Crimea remaining a part of Ukraine, though with significant autonomy. 65 In the same
period the Tatars, who were cleansed from the peninsula in 1944, began returning to the place that
they saw as their homeland, thus creating another factor of instability in the Crimea.66 Nevertheless,
the Crimea remained part of the Ukraine as the Autonomous Republic of Crimea until March 2014.
59
Sasse, G., The Crimean Question: Identity, Transition, and Conflict, Harvard University Press, Cambridge, 2007, pp. 8493.
60
Sasse, G., The Crimean Question: Identity, Transition, and Conflict, Harvard University Press, Cambridge, 2007, pp. 5-6.
61
Sasse, G., The Crimean Question: Identity, Transition, and Conflict, Harvard University Press, Cambridge, 2007, p. 6.
62
Decree of the Russian Soviet Federative Socialist Republic Council of Ministers, 'Concerning the Transfer of the Crimean
Oblast' from the RSFSR to the UkSSR', 5 February 1954, History and Public Policy Program Digital Archive, TsGA RSFSR
[GARF]. F.259. Op.1. D.645. L.159. Published in "Istoricheskii arkhiv"(1992). Translated for CWIHP by Gary Goldberg,
available at: http://digitalarchive.wilsoncenter.org/document/119634 [accessed 25 March 2015]
63
64
Kolstoe, P., Russians in the Former Soviet Republics, C. Hurst & Co., London, 1995, pp. 190-191.
65
66
16
The turbulent history of the Crimea has eventually led to the contemporary composition of the
Crimean population. The population is made up out of as many as 125 different nationalities and
ethnic groups, of which the most only consist of a limited number of people67. In this multi-ethnic
society the three largest groups are the Russians, Ukrainians and Crimean Tatars, who represent
respectively 58.5%, 24.4% and 12.1% of the total population.68 This paragraph shows that the Crimea
has seen three hundred years of Crimean Tatar rule from the fifteenth until the eighteenth century,
which explains the Crimean Tatar part of the population. The fact that they are now a minority can be
attributed to the Russian policy after 1783, especially the removal of all remaining Tatars from the
peninsula in 1944 and the fact that they were only able to return to the Crimea from 1991 onwards.
The Russian part of the population arises from the period 1783-1991, in which Russia, first as an
Empire and later as Soviet Union, had control over the Crimea and Russian migrants steadily became
the majority of the population, replacing the Tatars as majority. The Ukrainian part of the population
can mainly be attributed to the period from 1954 onwards, when the Crimea was part of the Ukrainian
SSR and subsequently part of Ukraine after the fall of the Soviet Union. This has led to a multi-ethnic
population of the Crimean peninsula.
2.2 The Crimean people

When considering whether the Crimean population can be seen as a people one cannot escape the
argument that the Crimean history has created a multi-ethnic society in which the three largest ethnic
groups, the Russians, the Ukrainians and the Crimean Tatars could be seen as three separate peoples,
who all have their separate right to self-determination.69 This argument is supported by the definition
of a people given by the UNESCO committee70 . When combining the previous paragraph with that
definition, it can at least be observed that all three ethnic groups can be said to separately correlate
with at least two points mentioned by the committee: a) a common historical tradition; and b) a shared
ethnic identity. But that does not mean that the total population of the Crimea cannot also be regarded
as a people. To establish this, it may not be necessary to go into an in-depth analysis on whether or not
the majority or separate parts of the Crimean population fit into the definition of a people given by
UNESCO. In the context of international law, a certain group of individuals can be recognised as a
people in cases where the constitution, legislation or practice of a state indicates that specified group
as a people.71 The other important aspect is, of course, whether they regard themselves as a people;
67
2001 Census results of the national structure of Crimea, State Statistics Committee of Ukraine, available at:
http://2001.ukrcensus.gov.ua/eng/results/general/nationality/Crimea/ [accessed 26 March 2015]
68
69
Bowring, B., The Crimean autonomy: innovation or anomaly?, in: Weller, M. and Wolff, S. (eds.), Autonomy, Selfgovernance and Conflict Resolution. Innovative approaches to institutional design in divided societies, e-book edition,
Taylor & Francis e-library, 2005, p. 65.
70
Final Report and Recommendations of an International Meeting of Experts on the Further Study of the Concept of the
Right of People for UNESCO, 22 February 1990, SNS-89/CONF.602/7. See chapter 1.3 of this thesis for the definition.
71
17
their self-identification.72 Thus, in the case of the Crimean population, what needs to be analysed
primarily are the possible recognition in the Ukrainian legal order and in which way the Crimean
population provides self-identification of themselves being a people.
Out of the historical context set out in the previous paragraph it is clear that Crimea has had
periods of autonomy under the Soviet Union from 1922 to 1945 and very briefly in 1991 just before
the Soviet Union collapsed. After the emergence of Ukraine as an independent state from the collapsed
Soviet Union in 1991 there were struggles to establish a framework in which the Crimea could be part
of Ukraine while keeping the (re)established autonomy it had acquired in the final months of the
existence of the Soviet Union. This conflict lasted for several years until the Constitution of Ukraine
was adopted in 1996.73 In a process that has been described as stop-go constitution-making, the
Autonomous Republic of Crimea (ARC) eventually adopted the Constitution of Crimea in 1998.74
The Constitution of Ukraine explicitly recognises the ARC as being a territory with a special status
within Ukraine, and it provides the issues over which the ARC can assert its authority.75 This means
that the Ukrainian government recognised the exercise of self-determination by the ARC since 1996,
thus implicitly recognising the population of the ARC as a people based on the fact that they reside
within the ARC. In a case before the Constitutional Court of Ukraine in 2003, the Court confirmed the
constitutionality of a number of articles of the Constitution of Crimea, thus anchoring the
constitutional recognition of the ARC and its autonomy.76 For an expression of self-identification by
the Crimeans one does not have to look further then the Constitution of Crimea. It even states one of
the fundamental principles of the ARC as being sovereignty of the people.77 Thus, it explicitly
identifies the Crimeans as a sovereign people.
The Crimean population can be seen as a people with a right to self-determination. This view
is supported by the recognition of the Autonomous Republic of Crimea in the constitution of Ukraine
since 1996, as well as by the recognition of the constitutionality of the Constitution of Crimea by the
Constitutional Court of Ukraine in 2003. Furthermore, the self-identification of the (majority) of the
Crimean population is evident from the fact that they established themselves as being distinct from
Ukraine throughout the process of establishing a constitution and finally in the 1998 Constitution of
Crimea. These facts acknowledge that it would not be wrong to assume that the Crimeans, even
72
McCorquodale, R. and Hausler, K., Caucuses in the Caucasus: The Application of the Right of Self-Determination, in:
Green, J. and Waters, C. (Eds.), Conflict in the Caucasus: Implications for International Legal Order, Palgrave Macmillan,
Basingstoke, 2010, pp. 29-30.
73
Walter, C., Postscript: Self-determination, Secession, and the Crimean Crisis 2014, in: Walter, C., von Ungern-Sternberg,
A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University Press, Oxford, 2014,
p. 296.
74
75
1996 Constitution of Ukraine, 28 June 1996, chapters IX and X; English translation available at:
http://www.wipo.int/wipolex/en/text.jsp?file_id=180743 [accessed 30 March 2015]
76
Bowring, B., The Crimean autonomy: innovation or anomaly?, in: Weller, M. and Wolff, S. (eds.), Autonomy, Selfgovernance and Conflict Resolution. Innovative approaches to institutional design in divided societies, e-book edition,
Taylor & Francis e-library, 2005, p. 80.
77
1998 Constitution of Crimea, 21 October 1998, Article 3(1); English translation available at:
http://www.rada.crimea.ua/en/bases-of-activity/konstituciya-ARK [accessed 31 March 2015]
18
though they form a patchwork of different ethnic groups, can be seen as people under international law
in the context of self-determination.
2.3 The exercise of self-determination by Crimea

After establishing that the Crimean population can be seen as a people with a right to selfdetermination, it needs to be established if the secession by Crimea is a legitimate exercise of that
right. In international law the preferred method of exercising self-determination is within the broader
state. As the Supreme Court of Canada stated in its consideration of Qubecs potential request for
secession: The recognized sources of international law establish that the right to self-determination of
a people is normally fulfilled through internal self-determination a people's pursuit of its political,
economic, social and cultural development within the framework of an existing state. 78 There are,
however, some exceptions in which self-determination is allowed to be exercised externally through
secession. Again we turn to the Canadian Supreme Court, which established two widely accepted
situations in which this holds true: colonial and suppressed peoples.79 Since the Crimean people can
neither be seen as a colonial people nor as a supressed people these can be regarded as irrelevant to the
Crimean secession. But the Court also established a third situation which it describes as: 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.80 This is the only circumstance that could possibly
be linked with the Crimean situation, so it is worth analysing whether the situation in Crimea in March
2014 can be described as such.
The situation in Ukraine in the weeks between the establishment of the interim government
and the referendum was certainly unstable to say the least. Even in the weeks before the change in
government there were rallies in Crimea by worried ethnic Russians, and the departure of president
Yanukovych increased the uncertainty amongst the majority of the Crimean people, with the new
government especially angering the majority of the Crimeans by stating that it would strengthen the
importance of the Ukrainian language.81 However, there is no genuine indication that the Revolution
has negatively influenced the exercise of self-determination by the Crimeans. The OSCE High
Commissioner on National Minorities Astrid Thors found that there was tension on the peninsula, but
that there was no evidence of violations or threats to the rights of Russian speakers during her visit to
Kyiv and Crimea in the beginning of March 2014.82 This view was reflected in the Report on the
Human Rights Situation in Ukraine issued on 15 April 2014 by the UN Office of the High
Commissioner of Human Rights (OHCHR), which stated that: It is widely assessed that Russian78
Canadian Supreme Court, Reference Re Secession of Qubec, 20 August 1998, (1998) 2 S.C.R. 217, para. 126.
Canadian Supreme Court, Reference Re Secession of Qubec, 20 August 1998, (1998) 2 S.C.R. 217, paras. 131-133.
80
Canadian Supreme Court, Reference Re Secession of Qubec, 20 August 1998, (1998) 2 S.C.R. 217, para. 134.
81
Prentice, A., East and West face off over Ukraines Crimea, Reuters, (26 February 2014), available at:
http://www.reuters.com/article/2014/02/26/us-ukraine-crisis-crimea-idUSBREA1P23U20140226 [accessed 2 April 2015]
82
OSCE press release, Developing situation in Crimea alarming, says OSCE High Commissioner on National Minorities, (6
March 2014), available at: http://www.osce.org/hcnm/116180 [accessed 2 April 2015]
79
19
speakers have not been subject to threats in Crimea.83 And just the tension in the region is not enough
to act as an exceptional circumstance that validates a claim to the right to external self-determination
through secession as a last resort.84 It also cannot be argued that the already existing autonomy of
Crimea is insufficient to exercise the right to self-determination meaningfully.85
So since there is no indication that the existing rights of the Crimeans are limited and since
there is no indication that the already existing autonomy of the Crimea is insufficient to fully exercise
their internal self-determination, it is clear that the circumstances of Crimea do not correspond with
the circumstances, given by the Supreme Court of Canada, in which external self-determination can be
exercised as a last resort. Thus, Crimea should have maintained their exercise of the right to selfdetermination internally, and the secession from Ukraine was not the correct legal step to take under
international law on self-determination.
2.4 Conclusion
In the first paragraph I have set out the series of historical events that have led to the contemporary
composition of the Crimean population. From these events it became clear that the three major ethnic
groups in Crimea, the Russians, Ukrainians and Crimean Tatars, all have a (historical) connection to
the peninsula. I have also set out what the position of the Crimea was throughout its modern history.
In the second paragraph I have combined my findings from the first paragraph with the contemporary
views on the definition of a people with a right to self-determination. From this I have found that the
population of the Crimea can be recognised as a people with a right to self-determination. The fact that
the Crimea has known periods of autonomy under the USSR and especially the fact that Ukraine
recognises the Crimea as an autonomous republic in its constitution provide evidence of the
recognition of the Crimean population as a people. This combined with their self-identification,
through the constitution of the Autonomous Republic of Crimea, makes it clear that the Crimea
harbours a people with a right to self-determination under international law, despite the multi-ethnicity
of the peninsula. In the third paragraph I established that under contemporary international law the
exercise of self-determination should in principle be internal. Only when there is no possibility for a
people to meaningfully exercise their right to internal self-determination internally, the external
exercise can be used as a last resort. In the case of the Crimea the situation was certainly unstable, and
there was a genuine tension in the Crimea because it was believed that the Revolution could limit their
exercise of internal self-determination. There was, however, no indication that the Revolution posed
an immediate threat to the possibility of internal exercise of self-determination by the Crimea and its
83
UN OHCHR, Report on the human rights situation in Ukraine, 15 April 2014, para 89. Available at:
www.ohchr.org/Documents/Countries/UA/Ukraine_Report_15April2014.doc [accessed 30 April 2015]
84
Basingstoke, 2010, p. 42.
85
Walter, C., Postscript: Self-determination, Secession, and the Crimean Crisis 2014, in: Walter, C., von Ungern-Sternberg,
A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University Press, Oxford, 2014,
p. 307.
20
people, and thus there was no exceptional circumstance that enabled the Crimea to exercise external
self-determination as a last resort. It can be concluded that the Crimean population can be recognised
as a people with a right to self-determination, which they exercised as an autonomous republic in the
period 1922-1945 and since 1991 under both the Soviet Union and Ukraine. However, there was no
genuine indication that the already existing internal self-determination was limited by the new
government. There was no exceptional circumstance that could lead to an immediate right to external
self-determination at the moment the referendum was held in March 2014. This means that the Crimea
should have continued its internal exercise of self-determination, and that the Crimean secession from
Ukraine was not a legitimate step to take at that moment in the context of international law on selfdetermination.
21
3. The secession and the role of Russia

In the previous chapter I have established that the Crimea did have a right to self-determination,
though under international law they could not legally exercise this right externally in March 2014.
However, the fact that the Crimea nevertheless de facto seceded from Ukraine while claiming a right
to external self-determination prompts an analysis of the secession in the context of the separate
elements and limitations that make up the international legal rules on self-determination. When
analysing the Crimean situation of March 2014 one cannot look past the role that the Russian
Federation has played, so in this chapter I focus on two of the elements of self-determination that have
been (partly) influenced by actions taken by the Russian federation. In the first paragraph I elaborate
on the requirement in international law that the exercise of self-determination should happen through
the free expression of the will of the people. Subsequently I analyse the Crimean secession through the
referendum of 16 March 2014 in the context of this requirement. In the second paragraph I set out the
situation in which a third state is allowed to assist a people in exercising their right to selfdetermination and the limitations that this third state has to adhere to. With Russia obviously assisting
the Crimea in its secession, I analyse whether the Crimean situation was such as to allow assistance
and whether Russia adhered to the limitations on this assistance. This together will provide a clear
view of the influence exercised by the Russian Federation on the Crimean secession, and what this
means for the legality of this secession in light of international law on self-determination.
3.1 The free expression of the will of the people

In chapter one I have already briefly touched upon the requirement under international law that the
exercise of the right to self-determination of a people should happen through the free expression of the
will of that people. This was set out by the ICJ in its advisory opinion on the Western Sahara.86 In
international law, a referendum is deemed to be a sound way to determine this free will.87 For instance,
the Badinter Committee held that the will of the people in Bosnia-Herzegovina could be established
through a referendum under international supervision.88 However, for a referendum to be seen as a
genuine and free expression of the will of the people, it has to adhere to certain recognised conditions.
The Crimean referendum of 16 March 2014 is no exception and should also adhere to these
conditions. President Putin confirmed in a speech to the Russian Parliament on 18 March that the
Crimean referendum was in full compliance with democratic procedures and international norms.89
86
Western Sahara Advisory Opinion, International Court of Justice (ICJ), 16 October 1975, I.C.J. Reports 1975, p. 12, para
55.
87
88
Badinter Committee, Opinion No. 4, 11 January 1992, 31 ILM 1495, (1992), para 4.
89
President of Russia, Adress by President of the Russian Federation, 18 March 2014, English transcript, available at:
http://en.kremlin.ru/events/president/news/20603 [accessed 16 April 2015]
22
While there is no international document that precisely defines the conditions on holding a
referendum, a helpful guideline is provided by the Venice Commission of the Council of Europe: the
Code of Good Practice on Referendums (Code of Good Practice).90 An analysis of the Crimean
referendum and the situation surrounding it in light of this guideline presents a few issues that point to
the fact that, contrary to Russian and Crimean ideas, the referendum is not in compliance with
democratic procedures and international norms.
The first issue with the Crimean referendum is the wording of the referendum. The ballot
offered only two choices: 1) Are you in favour of reuniting Crimea with Russia as a subject of the
Russian Federation? 2) Are you in favour of restoring the 1992 Constitution and the status of Crimea
as a part of Ukraine? The only option for the voters was to mark one of these two choices. 91 This
means that the ballot omitted other choices, such as maintaining Crimeas position as part of Ukraine
without any change.92 This seems to be non-compliant the requirement of free suffrage, especially with
Part I.3.1.c of the Code of Good Practice.93 The second point is the presence of military forces on the
Crimean peninsula. There were already several sources stating that Russian military forces were
publicly present on Crimean territory before and during the referendum.94 While the Russian
Federation first denied that Russian troops were active on the peninsula, President Putin confirmed in
his annual televised meeting with the nation on 17 April 2014 that there were Russian forces, and he
proclaimed that their presence was necessary to keep order so that all Crimeans could vote in their
referendum.95 However, outside of Russia, there were concerns whether the presence of military forces
might intimidate voters to choose something they did not want.96 If this is the case, it seems that the
presence of military forces during the Crimean referendum does not comply with the Code of Good
Practice, namely with Part I.3 on free suffrage.97 The last point that has to be considered is the short
period of only ten days between the calling of the referendum on 6 March and the referendum itself on
16 March.98 The British Foreign Secretary William Hague commented that: The referendum has
taken place at ten days notice, without a proper campaign or public debateIt is a mockery of proper
90
Venice Commission, Study No. 371/2006, Code of Good Practice on Referendums, 19 March 2007, CDL-AD(207)008
Sneider, N., 2 Choices in Crimea Referendum, but Neither Is No, NY Times, (14 March 2014), available at:
http://www.nytimes.com/2014/03/15/world/europe/crimea-vote-does-not-offer-choice-of-status-quo.html [accessed 17 April
2015]
92
Burke-White, W.W., Crimea and the International Legal Order, University of Pennsylvania Law Faculty Scholarship,
Paper 1360, (2014), p. 8. Available at:
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2360&context=faculty_scholarship [accessed 19 April 2015]
93
Venice Commission, Study No. 371/2006, Code of Good Practice on Referendums, 19 March 2007, CDL-AD(207)008.
94
Herszenhorn, D.M., Crimea Votes to Secede From Ukraine as Russian Troops Keep Watch, NY Times, (16 March 2014),
available at: http://www.nytimes.com/2014/03/17/world/europe/crimea-ukraine-secession-vote-referendum.html?_r=0
[accessed 20 April 2015]
95
Lally, K., Putins remarks raise fear of future moves against Ukraine, The Washington Post, (17 April 2014), available at:
http://www.washingtonpost.com/world/putin-changes-course-admits-russian-troops-were-in-crimea-beforevote/2014/04/17/b3300a54-c617-11e3-bf7a-be01a9b69cf1_story.html [accessed 20 April 2015]
96
Brilmayer, L., Why the Crimean referendum is illegal, The Guardian, (14 March 2014), available at:
http://www.theguardian.com/commentisfree/2014/mar/14/crimean-referendum-illegal-international-law [accessed 20 April
2015]
97
Venice Commission, Study No. 371/2006, Code of Good Practice on Referendums, 19 March 2007, CDL-AD(207)008.
98
Walker, S. and Traynor, I., Ukraine crisis: Crimea now part of Russia, local parliament declares, The Guardian, (6 March
2014), available at: http://www.theguardian.com/world/2014/mar/06/ukraine-crisis-crimea-part-of-russia-local-parliamentdeclares [accessed 23 April 2015]
91
23
democratic practice.99 Indeed it is a very short period and it is questionable whether this is compliant
with Part I.3.1 of the Code of Good Practice on the freedom of voters to form an opinion, especially
under I.3.1.d which states that: the text submitted to a referendumshould be made available to
electors sufficiently in advance.100 An added factor is that during the short timeframe of ten days the
Crimean authorities already issued a declaration of independence on 11 March.101 This means that the
authorities were not taking a neutral standpoint on the issue of independence, but rather got ahead of
the choice that had to be made in the referendum. This is not compliant with Part I.2 of the Code of
Good Practice on equal suffrage, because equal suffrage entails a neutral attitude by administrative
authorities.102
So while Russia stated that the referendum was in full compliance with international norms,
the arguments presented above are supported by both regional and international organisations. In an
opinion on the referendum of the Venice Commission, the points stated above are indeed deemed to be
issues of which it is highly questionable whether they comply with international norms. The Venice
Commission mentions that:
While the Venice Commission has not made a comprehensive assessment of the current situation
in Crimea, the massive public presence of (para)military forces is not conducive to democratic
decision making.
Concerns have been expressed, including by the OSCE, with respect to the freedom of expression
in Crimea.
The period of only 10 days between the decision to call the referendum and the referendum itself is
excessively short.
On 11 March the Supreme Rada adopted a declaration on the independence of Crimea. This raises
doubt with respect to the legal effects of the referendum and the neutrality of the authorities.103
The Commission further notes that the referendum question is not worded neutrally, because it only
provides the alternatives of independence or return to the 1992 Constitution, with no possibility to
express the wish to maintain the current Constitution and it ends the Opinion with the conclusion that
circumstances in Crimea did not allow the holding of a referendum in line with European democratic
99
UK Government press release, Crimea referendum should not convince anyone, says William Hague, (16 March 2014),
available at: https://www.gov.uk/government/news/crimea-referendum-should-not-convince-anyone-says-william-hague
100
Part I.3.1.d, Venice Commission, Study No. 371/2006, Code of Good Practice on Referendums, 19 March 2007, CDLAD(207)008.
101
Russia Today, Crimea parliament declares independence from Ukraine ahead of referendum, (11 March 2014), available
at: http://rt.com/news/crimea-parliament-independence-ukraine-086/ [accessed 23 April 2015]
102
Part I.2.2.a, Venice Commission, Study No. 371/2006, Code of Good Practice on Referendums, 19 March 2007, CDLAD(207)008.
103
Venice Commission, Opinion no. 762/2014 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 Crimeas 1992 Constitution is Compatible with Constitutional Principles, 21 March 2014, CDL-AD(2014)002, para
22.
24
standards.104 The UN General Assembly adopted a resolution on the situation on 27 March 2014, titled
Territorial integrity of Ukraine, by a recorded vote of 100 in favour to 11 against, with 58
abstentions.105 This Resolution does not explicitly mention the elements that would make the
referendum illegitimate, but it does underscore that: the referendum heldon 16 March 2014, having
no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of
Crimea.106 It subsequently calls upon all States, international organizations and specialized agencies
not to recognize any alterationon the basis of the above-mentioned referendum.107
When analysing the situation in the Crimea surrounding the referendum of 16 March 2014 it is
thus evident that this referendum cannot answer the requirement that the right to self-determination be
exercised through a free expression of the will of the people. While a referendum is a legitimate way
to determine the will of the people, the Crimean referendum does not answer the international
requirements that such a referendum has to adhere to. First of all, the two choices of the referendum
were both aimed at a change in the position of Crimea, thus not offering a choice to keep the position
of the Crimea as it was. This means that individuals who did not want a change could not express their
will through the referendum. Then there was the public presence of Russian military forces, which
meant individuals could feel pressurised into making choices that did not represent their will. And
finally there is the short period of only ten days between the calling of the referendum and the
referendum itself. This, in combination with the fact that the Crimean authorities issued a declaration
on the independence of the Crimea on 11 March, five days before the referendum., raises doubt about
the intention and neutrality of the authorities with respect to the referendum. Taking into regard the
guidelines presented by the Code of Good Practice on Referendums, the opinion of the Venice
Commission and the disqualification of the referendum by the UN General Assembly, it should be
concluded that, at least in part due to the influence of the Russian Federation through its military
presence, the Crimean referendum of 16 March 2014 cannot be regarded as the genuine and free
expression of the will of the people, required to exercise the right to self-determination.
3.2 Assistance from a third state

As has become prevalent from all actions surrounding the Crimean situation, the Russian Federation
fully supported Crimea in its move to independence. In fact, as has become clear from statements
made by President Putin on 17 April 2014, Russia deployed troops to Crimea to assist the Crimeans
104
Venice Commission, Opinion no. 762/2014 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 Crimeas 1992 Constitution is Compatible with Constitutional Principles, 21 March 2014, CDL-AD(2014)002,
paras 23 and 28.
105
UN General Assembly Official Records, 80th plenary meeting of the 68th session, 27 March 2014, UN Doc. A/68/PV.80.
106
UN General Assembly, Resolution 68/262. Territorial integrity of Ukraine, 27 March 2014, UN Doc. A/RES/68/262, para
5.
107
UN General Assembly, Resolution 68/262. Territorial integrity of Ukraine, 27 March 2014, UN Doc. A/RES/68/262, para
6.
25
with their separation from Ukraine.108 In international law on self-determination there is a legal basis
for third-state assistance to peoples seeking to exercise self-determination. This legal basis can be
found in the limitation on use of force against those peoples. The limitation on use of force is firmly
anchored in the Declaration on Principles of International Law, which iterates that states must refrain
from taking forcible action to prevent the exercise of the right to self-determination.109 It also states
that peoples against whom forcible action is taken are entitled to seek and to receive support in
accordance with the purposes and principles of the Charter.110 This presents third states with the legal
authorisation to grant assistance to peoples who are being prevented exercise of their right to selfdetermination.111 So in assessing Russian assistance to Crimea, it first needs to be determined whether
forcible action has been taken by the Ukrainian authorities against Crimea.
President Putin claimed that there was a risk that the Russian speaking population was
threatened and that the threats were absolutely specific and tangible.112 But it seemed to be only
Russia that saw this threat. As already described in chapter 2.3, the OSCE High Commissioner on
National Minorities found that there were no violations or threats to people in Crimea. 113 This view
was reflected in the Report on the Human Rights Situation in Ukraine issued on 15 April 2014 by the
OHCHR.114 Since these supposed threats were the only substantial argument of forcible action against
the self-determination of Crimeans, it can thus be concluded that there was no forcible action by the
Ukrainian authorities at all, which means that there is no legal basis for assistance from a third state in
Crimeas exercise of self-determination.
Nevertheless, Crimea did receive assistance from Russia in various forms. One of these forms
was through the aforementioned deployment of troops to Crimea. As described in the Declaration on
Principles of International Law the third-state assistance should be in accordance with the purposes
and principles of the Charter. This means that the limitations to third-state assistance are defined by
these purposes and principles. One of the principles is Article 2(4) on the prohibition on the threat or
use of force against the territorial integrity of any state. Again, a mention has to be made to President
Putins statements of 17 April 2014. He mentioned that: We didnt want any tanks, any nationalist
combat units or people with extreme views armed with automatic weapons. Of course, the Russian
108
Lally, K., Putins remarks raise fear of future moves against Ukraine, The Washington Post, (17 April 2014), available
at: http://www.washingtonpost.com/world/putin-changes-course-admits-russian-troops-were-in-crimea-beforevote/2014/04/17/b3300a54-c617-11e3-bf7a-be01a9b69cf1_story.html [accessed 20 April 2015]
109
110
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations, UN GAOR 2625 (XXV), 24 October 1970, A/RES/2625 (XXV).
111
Cassese, A., Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, Cambridge, 1995, p. 154.
112
President of Russia, Direct Line with Vladimir Putin, 17 April 2014, English transcript, available at:
113
OSCE press release, Developing situation in Crimea alarming, says OSCE High Commissioner on National Minorities,
(6 March 2014), available at: http://www.osce.org/hcnm/116180 [accessed 2 April 2015]
114
26
servicemen did back the Crimean self-defence forces.115 The fact that Russian troops were present on
Crimean soil in such numbers as to be able to prevent actions by nationalist combat units implies in
legal terms that there was an armed intervention in Crimea, which was in breach of the territorial
integrity of Ukraine.116 Thus, even if Russia believed that forcible action was being taken which was
preventing the exercise of self-determination by the Crimean people, Russian troop deployment in
Crimea is not in line with the purposes and principles of the UN Charter, which means it does not
adhere to the limitations imposed on third-state assistance to a people seeking self-determination.
It can be assessed that Russian assistance to the Crimean exercise of self-determination does
not have a legal basis, for there was no indication of forcible action by the Ukrainian authorities
against Crimea. Furthermore, the Russian assistance in the form of deployment of military forces is a
violation of the prohibition on use of force against the territorial integrity of Ukraine as stated in
Article 2(4) UN Charter. Therefore it has to be concluded that Russian assistance for the Crimean
exercise of self-determination does not have any legal basis in international law.
3.3 Conclusion
In paragraph one of this chapter I started with an analysis on whether the Crimean referendum of 16
March 2014 can be seen as a genuine and free expression of the will of the people. When placing the
referendum and the situation in which it took place alongside the Code of Good Practice on
Referendums, there are several indications that this is not the case. The referendum was biased
towards separation from Ukraine; there was a public presence of Russian military forces which may
have influenced the voting in the referendum; and finally there is the short period of ten days between
the calling of the referendum and the referendum itself, in combination with non-neutrality of the
Crimean authorities. This view is supported by both regional and international organisations. The
conclusion is that, partly because of Russian influence, the referendum has failed to be the genuine and
free expression of the will of the people, and can thus not be seen as a legal exercise of the right to
self-determination. In paragraph two I discussed the possibility for peoples to receive assistance from
a third state in their exercise of self-determination. In the case of Crimea it is obvious that the Russian
Federation supported, and was even instrumental, in Crimeas exercise of self-determination. The
problem that arises here is that assistance from a third state can only be legal if forcible action is taken
against the people seeking self-determination. In Crimea, there was no indication of such action by the
Ukrainian authorities; hence there is no legal basis to receive assistance from Russia. Furthermore,
even if force would have been used, there are limitations that the assistance of a third state should
adhere to. In the case of Russian assistance to Crimea these limitations are violated because Russia
violated the UN Charter principle on prohibition on the use of force against the territorial integrity of
115
President of Russia, Direct Line with Vladimir Putin, 17 April 2014, English transcript, available at:
116
Tancredi, A., The Russian annexation of the Crimea: questions relating to the use of force, Questions of International
Law, Zoom out I, (2014), p. 9.
27
Ukraine through deploying troops to the Crimea. Overall it can be concluded that the Russian
influence on the Crimean secession has only frustrated any possible legality that the Crimean exercise
of self-determination might have possessed. The Russian military presence, combined with a biased
questioning and non-neutrality of the authorities, has led to a referendum that cannot be regarded as
the free and genuine expression of the will of the people. Russian assistance to Crimea can be regarded
as totally illegitimate, because there was no forcible action from Ukraine against the Crimean people.
Furthermore, even if there had been actions by Ukraine that could be deemed as forcible, Russian
assistance through military intervention would still not have been legal because it violates the principle
of prohibition on the use of force against the territorial integrity of another state. Thus, both the
referendum and the Russian assistance are not in line with international law on self-determination.
28
4. The territorial integrity of Ukraine

One of the objections often expressed by states against external self-determination is the fact that it
violates a core principle of international law, that of the territorial integrity of the state. As described in
chapter one of this thesis, the principle of territorial integrity is indeed one of the limitations that
international law places on the right to self-determination, it protects a state against any unwanted
changes of its territory, and thus it serves to protect the sovereignty of the state. The complex relation
between the principle of territorial integrity and the right to self-determination demands a proper
analysis of this relation in the context of the Crimean secession. This chapter will be aimed at
analysing how the Crimean secession relates to Ukrainian territorial integrity, and what this means for
the legality of that secession in light of international law on self-determination. At the outset I
elaborate on the relation between the principle of territorial integrity and the right to selfdetermination, and how the two are balanced in international law. Then I analyse the Crimean
secession, based on the claim of a right to self-determination, in the light of this relation. In the second
paragraph I will discuss the ICJs Advisory Opinion on Kosovo which is called upon by Crimea and
Russia to legitimise the Crimean secession, and which contains some potentially interesting remarks
on territorial integrity. This together will provide a clear view on the relation between Crimeas claim
of the right to self-determination and Ukraines territorial integrity, and on how the principle of
territorial integrity might affect the legitimacy of that claim.
4.1 Territorial integrity and self-determination

As explained in chapter one of this thesis, the principle of territorial integrity is one of the core
principles of international law, enshrined in Article 2(4) of the UN Charter. Essentially, the principle
asserts that the territory of a state will not be altered without its consent, which is based on keeping
international peace and security.117 The relationship between territorial integrity and self-determination
becomes apparent from numerous international documents, where the two principles are never far
apart. For example, in the Declaration on Principles of International Law the right to selfdetermination is explicitly limited by territorial integrity. At the end of a paragraph which recognises
the right to self-determination, the Declaration states that: 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
117
29
territory without distinction as to race, creed or colour.118 In the more recent Vienna Declaration and
Programme of Action the wording is slightly different, though the position taken in the Declaration on
Principles of International Law is reaffirmed. The Vienna Declaration states that the right to selfdetermination of peoples shall not 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 and thus possessed of a Government representing the whole people
belonging to the territory without distinction of any kind.119 Both these texts seem to limit the right to
self-determination in such a way that it may not affect the territorial integrity of states, thus seemingly
keeping self-determination limited to internal exercise. States also prefer that self-determination be
exercised in this way.120 This seems logical, for if there was an unconditional right to exercise selfdetermination through secession, it may well end up in total territorial chaos.121 And that would not be
a positive development for international peace and security. The ensuing legal presumption is that selfdetermination is bound to constructions of federation or autonomy within the state, so as to not impair
the principle of territorial integrity.122 In its advisory opinion on Quebecs right to self-determination
the Canadian Supreme Court apparently confirms this position. It worded the relation between
territorial integrity and self-determination as follows: There is no necessary incompatibility between
the maintenance of the territorial integrity of existing states and the right of a "people" to achieve a
full measure of self-determination. A state whose government represents the whole of the people or
peoples resident within its territory, on a basis of equality and without discrimination, and respects the
principles of self-determination in its own internal arrangements, is entitled to the protection under
international law of its territorial integrity.123 This view by the Supreme Court more or less confirms
the relation of self-determination and territorial integrity as set out in the Declaration on Principles of
International Law and the Vienna Declaration. When self-determination is allowed to be fully
exercised internally, there is absolutely no conflict with the territorial integrity of the state; both the
principles exist in a balance. However, in cases where a people is seeking to exercise selfdetermination externally, thus to secede from an existing state, it is evident that this requires a
redrawing of the borders of that state, which would seem totally contrary to the principle of territorial
118
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations, UN GAOR 2625 (XXV), 24 October 1970, A/RES/2625 (XXV).
119
World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993, UN Doc.
A/CONF.157/23, 12 July 1993, Part I, para 2.
120
Oxford, 2014, p. 56.
121
Demissie, D., Self-Determination Including Secession vs. The Territorial Integrity of Nation-States: A Prima Facie Case
for Secession, Suffolk Transnational Law Review, Vol. 20:165, (1996), p. 192.
122
Oxford, 2014, p. 56.
123
Canadian Supreme Court, Reference re Secession of Quebec, (1998) 2 S.C.R. 217, para 130.
30
integrity of states.124 Thus, the territorial integrity of states would be violated by all contemporary
secessionist claims.125 As Emerson stated in 1971: If the right of secession is eliminated and the
maintenance of the territorial integrity of states takes priority over the claims of "peoples" to establish
their own separate political identity, the room left for self-determination in the sense of the attainment
of independent statehood is very slight126 However, to at all times adhere to the principle of territorial
integrity would not be a virtue if a people who seek to exercise their right to self-determination are
subjected to systematic deprivation of that right.127 If such cases arise, it should be noted that the
possibility of impairment of territorial integrity is not totally excluded from the aforementioned
international documents, thus they leave room for secession as a legitimate form of the exercise of
self-determination.128 The same could be said about the opinion of the Canadian Supreme Court. The
requirements are however very strict; just the fact that a people is unrepresented in a state does not
mean that secession is authorised and that the exercise of self-determination, in the form of secession,
may thus impair the territorial integrity of the state. The conditions that Cassese believes to be
necessary are: when the authorities refuse to grant participatory rights to a group, trample upon their
fundamental rights, and deny any possibility of a peaceful settlement within the internal structure of
the state.129 This would mean that external self-determination in the form of secession is the only
possible action left, a measure of last resort.130 On the relation between territorial integrity and selfdetermination it can thus be concluded that territorial integrity prevails over an external right to selfdetermination, as long as the state complies with the principle of self-determination and allows full
internal self-determination. If this is not the case and secession is the last resort for a people to enjoy
their right to self-determination, then external self-determination may prevail over the territorial
integrity of a state. This is what needs to be taken into account in applying the relation between the
two principles it in the context of the Crimean secession.
There is no doubt that the Crimean secession has de facto redrawn the boundaries of Ukraine,
thus impairing Ukraines territorial integrity. What remains is to determine whether the impairment of
the territorial integrity was justified by the circumstances of the Crimean people. In determining
whether or not the claim of self-determination by Crimea could have possibly overcome the territorial
integrity of Ukraine it is thus the question of whether the Crimean people were an unrepresented
people, if they were unable to exercise self-determination internally in the period before the secession.
124
Brilmayer, L., Secession and Self-Determination: A Territorial Interpretation, Yale Journal of International Law, Vol.
16:177, (1991), p. 178.
125
Demissie, D., Self-Determination Including Secession vs. The Territorial Integrity of Nation-States: A Prima Facie Case
for Secession, Suffolk Transnational Law Review, Vol. 20:165, (1996), p. 170.
126
Emerson, R., Self-Determination, American Journal of International Law, Vol. 65:459, (1971), p. 465.
127
Chen, L-C., Self-Determination and World Public Order, Notre Dame Law Review, Vol. 66:1287, (1991), p. 1297.
128
129
130
31
The situation should be so severe as to only have external self-determination as a measure of last
resort. Only then would the Crimean claim of a right to self-determination have been legitimated to
impair the territorial integrity of Ukraine. The obvious link that exists here is between the
circumstances that allow a people to exercise its right to self-determination externally and the
circumstances that allow the principle of territorial integrity to be overcome. Since these two are
bound to each other in this way, it is very useful to reiterate here the arguments which I already
presented in chapter two, on the possibility for Crimea to exercise the right to self-determination
externally. First, it should be noted that there was no genuine indication that the Ukrainian Revolution
had negatively influenced the exercise of self-determination by the Crimeans. The OSCE High
Commissioner on National Minorities Astrid Thors found that there was tension on the peninsula, but
that there was no evidence of violations or threats to the rights of Russian speakers during her visit to
Kyiv and Crimea in the beginning of March 2014.131 The same view on possible negative effects that
the Ukrainian Revolution might have had on human rights in the Crimea was reflected in the Report
on the Human Rights Situation in Ukraine issued on 15 April 2014 by the OHCHR. 132 Furthermore, it
can be argued there was no indication that the already existing autonomy of Crimea, granted under the
Ukrainian Constitution, was frustrated, or that it was insufficient to allow a meaningful exercise of
self-determination internally.133 These arguments showed that Crimea was not in a position that
allowed the external exercise of self-determination. Ipso facto, these same arguments mean that
Ukraine complied with the principle of self-determination and that the Crimean people cannot be seen
as an unrepresented or oppressed people. The territorial integrity of Ukraine should therefore be
upheld. When analysed in this manner it becomes clear that the Crimean secession cannot be based on
the right to self-determination. It conflicts with the territorial integrity of Ukraine while that territorial
integrity was safeguarded by the fact that Ukraine complied with the principle of self-determination by
allowing the Crimea to exercise self-determination through internal arrangements.
4.2 The Advisory Opinion on Kosovo by the International Court of

Justice
Until this moment the ICJs Advisory Opinion on the Accordance with international of the unilateral
declaration of independence in respect of Kosovo has not yet featured in this thesis, even though the
Crimean authorities and Russia partly based the legitimacy of the Crimean secession on this
Opinion.134 This Advisory Opinion was asked by the UN General Assembly on the instigation of
131
OSCE press release, Developing situation in Crimea alarming, says OSCE High Commissioner on National Minorities,
(6 March 2014), available at: http://www.osce.org/hcnm/116180 [accessed 2 April 2015]
132
133
Walter, C., Postscript: Self-determination, Secession, and the Crimean Crisis 2014, in: Walter, C., von UngernSternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International Law, Oxford University Press,
Oxford, 2014, p. 307.
134
President of Russia, Adress by President of the Russian Federation, 18 March 2014, English transcript, available at:
32
Serbia, after Kosovo declared their independence from Serbia unilaterally in 2008. It would have been
a great opportunity for the Court to further develop a view on the right to self-determination in
international law. But the Court chose a very narrow approach and decided that, even though a number
of participants in the proceeding had claimed that Kosovo had the right to declare independence
through their right to self-determination, it was an issue that was beyond the scope of the Advisory
Opinion.135 As a consequence of the lack of any elaboration on the right to self-determination, the
Kosovo Advisory Opinion is of almost no relevance to an analysis of Crimeas right to selfdetermination. Almost, for there is one subject on which the ICJ did elaborate in this Opinion, the
principle of territorial integrity. The Opinion provides some interesting considerations on territorial
integrity, which could potentially have an impact on the conclusion of the previous paragraph. That is
why the Kosovo Advisory Opinion features in this chapter. The first important remark by the Court is
that the principle of territorial integrity is only relevant in inter-state relations, and does not apply to
non-state actors.136 Therefore, the Court considers that secession by a non-state actor is not implicitly
prohibited by the protection that territorial integrity offers to states.137 But because the Court has
chosen a narrow approach and has not considered the right to self-determination in the Kosovo
Advisory Opinion there is no elaboration on the specific relation between territorial integrity and
secession as the exercise of an external right to self-determination. Even though the Court may argue
that secession is not prohibited by the principle of territorial integrity, it does not say that there is a
general positive right to secede which may at all times violate the territorial integrity of a state. 138 And
as Judge Yusuf argues in his Separate Opinion to the Advisory Opinion, the availability of a general
right to secession would reduce to naught the territorial sovereignty and integrity of States and would
lead to interminable conflicts and chaos in international relations.139 Thus, it should be concluded that
the views of the ICJ on the relation between secession and territorial integrity as they were presented
in the Kosovo Advisory Opinion, even though they seemed potentially of some importance, are too
vague to have any relevance to the arguments made in the previous paragraph.
4.3 Conclusion
In this chapter I have set out the relation between the right to self-determination and one of the core
principles of international law, the principle of territorial integrity of states. In international documents
such as the Declaration on Principles of International Law and the Vienna Declaration it is apparent
135
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory
Opinion, International Court of Justice (ICJ), 22 July 2010, I.C.J Reports 2010, p. 403, paras 82-83.
136
Opinion, International Court of Justice (ICJ), 22 July 2010, I.C.J Reports 2010, p. 403, para 80.
137
Urrutia, I., Territorial Integrity and Self-Determination: The Approach of the International Court of Justice in the
Advisory Opinion on Kosovo, Revista dEstudis Autonmics i Federals, Vol. 16, (2012), p. 110.
138
Urrutia, I., Territorial Integrity and Self-Determination: The Approach of the International Court of Justice in the
Advisory Opinion on Kosovo, Revista dEstudis Autonmics i Federals, Vol. 16, (2012), p. 113.
139
Opinion, International Court of Justice (ICJ), 22 July 2010, I.C.J Reports 2010, p. 403, Separate Opinion of Judge Yusuf,
para 10.
33
that territorial integrity is a possible limitation on the right to self-determination, but states can only
claim this safeguard when they comply with the principle of equal rights and self-determination of
peoples. The Canadian Supreme Court confirmed this view by explaining that self-determination and
territorial integrity are compatible principles, as long as self-determination is possible within the state.
From this, it can also be determined that both the Declarations and the Supreme Court implicitly
recognise that there are circumstances in which states cannot claim the safeguard of territorial
integrity. This is the case when a people is unrepresented and denied by a state to exercise their right
to self-determination internally. Thus territorial integrity can be seen as a safeguard against territorial
changes without consent, which can only be overcome by the right to self-determination in certain
extreme circumstances. When analysing the Crimean secession it is obvious that this is an action that
has de facto altered the territory of Ukraine without its consent. The question that remains is whether
the circumstances were such as to allow the secession, as an external exercise of self-determination, to
overcome the territorial integrity of Ukraine. In this regard the arguments that were presented in
chapter two, on the possibility of Crimea to exercise an external right to self-determination, can be
reiterated here, namely the fact that organisations such as the OSCE and the OHCHR stated that there
was no evidence that rights of Crimeans were being violated in the period leading up to the secession,
and that the Autonomous Republic of Crimea cannot be said to have been limited in its exercise of
internal self-determination. These findings provide ample evidence that Ukraine conducted itself in
compliance with the principle of self-determination of peoples. This means that the Ukrainian
territorial integrity was safeguarded from actions that would dismember of impair it. In the second
paragraph I analysed the considerations on territorial integrity that the ICJ presented in the Kosovo
Advisory Opinion. The Court considered that the principle of territorial integrity as an inter-state
principle cannot expressly prohibit secession. But the Court did not elaborate on the specific relation
between secession as the exercise of self-determination and territorial integrity. As such, the Kosovo
Advisory opinion does not impact the arguments given above on that relation. Thus, the Crimean
people should have respected the territorial integrity of Ukraine and should have continued to exercise
self-determination internally. Since the Crimea nevertheless altered the territory of Ukraine through
seceding while claiming a right to self-determination, it should be regarded that the Crimean secession
conflicts with the limitation of territorial integrity imposed by international law on the right to selfdetermination. The secession should thus be seen as non-compliant with international law on the
exercise of self-determination in this regard.
34
5. The rights of others as a limitation to selfdetermination

After analysing the Crimean secession in light of the limitation that territorial integrity imposes upon
the exercise of the right to self-determination, this chapter will be aimed at the last of the limitations
on self-determination that I mentioned in chapter one, the limitation of rights of others. This chapter
will show how rights of others limit the exercise of self-determination, and what this means for the
legality of the Crimean secession. I first elaborate on the limitation that rights of others may impose on
the right to self-determination, where this limitation is found in international law, and I provide
examples to illustrate how self-determination may be limited by rights of others. I then focus on the
situation in the Crimea and analyse how this limitation might affect the Crimean secession as a
legitimate exercise of the right to self-determination. In this analysis I will especially focus on the
rights of the Crimean Tatars, as they are exemplary as a significant minority in Crimea with individual
as well as group rights. This will provide a clear view on whether Crimea took into account the rights
of others when seceding and how the secession has impacted rights of others. Ultimately, this chapter
will present a view on the legitimacy of the Crimean secession as an exercise of the right to selfdetermination, with regard to the limitation imposed by rights of others.
5.1 The rights of Crimean Tatars

As I have set out in chapter one of this thesis, the right to self-determination is a human right which is
protected in the Common Article 1 of the ICCPR and ICESCR. As a human right which is not an
absolute right, self-determination is limited in its exercise.140 The aforementioned Covenants also have
a Common Article 5, which imposes a limitation on the exercise of the rights in the Covenants.
Common Article 5(1) provides: Nothing in the present Covenant may be interpreted as implying for
any State, group or person any right to engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent
than is provided for in the present Covenant.141 This means that self-determination, as it is present in
both Covenants, has to take into account the rights that others enjoy through these Covenants. It is a
limitation that applies to the right to self-determination, a people is limited in its exercise of selfdetermination in order to take into account the rights of other people.142 In a report on selfdetermination by a UNESCO Conference of Experts in 1998 it was stated that: Self -determination
140
141
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, UNTS, vol. 999, p. 171;
UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS, vol.
993, p. 3
142
35
also imposes responsibilities on the claimants to respect the human rights, including the rights of
minorities and indigenous peoples and of other peoples and communities within their jurisdiction, and
to constructively resolve problems that arise from the implementation of the right.143 An example of
the importance of rights of others when self-determination is exercised can be found in the
consideration of Qubecs potential request for secession by the Supreme Court of Canada. The Court
acknowledged the importance of the submissions made to us respecting the rights and concerns of
aboriginal peoples in the event of a unilateral secession, as well as the appropriate means of defining
the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by
aboriginal peoples.144 While the Court decided that it did not have to elaborate on this subject because
it already found that Qubec did not have right to secede, this example shows that right of others
should be taken into account in the exercise of self-determination. Another example of the limitation
that rights of others may impose on the exercise of self-determination can be found in the opinions of
the Badinter Committee, which recognised that the Republics of the former Socialist Federal Republic
of Yugoslavia had a right to self-determination, but added the requirement that this right had to be
exercised in such a way as to respect minority rights.145 When looking at these two examples it is
evident that rights of minorities and indigenous peoples have to be taken into account when exercising
self-determination.
When looking at the Crimean secession, there is one group of people whose rights may well
limit the exercise of the right to self-determination of Crimea, the Crimean Tatars. As already
mentioned in chapter two of this thesis when discussing the ethnic composition of the Crimea, the
Crimean Tatars represented 12.1% of the population (243400 persons).146 They thus form a
significantly large ethnic minority of the Crimean population. The Tatars have a long history on the
peninsula, but after being totally removed from the Crimea through deportations in 1944 by orders
from Stalin they are only coming back to live there since the collapse of the Soviet-Union.147 The
referendum of 16 March 2014 was the way in which Crimea purported to exercise self-determination,
so the rights of the Crimean Tatars should have been respected in decisions surrounding that
referendum. That was, however not the case. Crimean Tatar views and opinions were not taken into
account when making decisions on holding the referendum. The Council of Europe (CoE) Advisory
Committee on the Framework Convention for the Protection of National Minorities noted in a report
143
UNESCO Division of Human Rights Democracy and Peace & Centre UNESCO de Catalunya, The Implementation of
the Right to Self-Determination as a Contribution to Conflict Prevention: Report of the International Conference of Experts
held in Barcelona from 21 to 27 November 1998, p. 17. Available at:
http://www.unpo.org/downloads/THE%20IMPLEMENTATION%20OF%20THE%20RIGHT%20TO%20SELF.pdf
144
Canadian Supreme Court, Reference re Secession of Quebec, (1998) 2 S.C.R. 217, para 139.
145
146
147
36
issued on 2 April 2014 that the conduct of a referendum without sufficient and comprehensive prior
consultation with the population, including importantly the minority populations, and under the threat
of force destroys the preconditions for free and effective participation for those concerned.148 The UN
OHCHR report on the situation in Crimea issued on 15 April 2014 notes that For the full enjoyment
and respect for the rights guaranteed in articles 19, 21 and 22 of the International Covenant on Civil
and Political Rights, it is necessary to ensure, inter alia, freedom to debate public affairs, to hold
peaceful demonstrations and meetings, to criticize and oppose, to publish political material, to
campaign and to advertise political ideas.149 The report then continues to describe numerous reports
of violations of these articles, which protect the freedom of opinion and expression, the right of
peaceful assembly and the right to freedom of association. Described are such actions as harassment
and violence against peaceful demonstrations and abductions of individuals who were critical of the
referendum and the choices available in it.150 Eventually the Tatars, who were vehemently against the
proposed plans of joining the Russian Federation because of the fear that they would suffer from
Russian rule like in 1944, boycotted the referendum.151 It is thus clear that there was no room for
Crimean Tatars, or other critics of the referendum, to present their views on the matter. The authorities
even went so far as to violate numerous rights protected in the ICCPR.
After seceding from Ukraine and choosing to join the Russian Federation, the situation of the
Crimean Tatars has worsened. At first the political changes in the Crimea seemed to favour the Tatars,
as the Crimean parliament passed a resolution on constitutional reform that would have allowed for
proportional Tatar representation in legal and executive bodies and the granting of official status to the
Tatar language, which it did not yet have under Ukrainian law.152 However, it has become clear that
the secession has negative consequences for the Crimean Tatars. According to a report issued by the
OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the OSCE High
Commissioner on National Minorities (HCNM), the secession and subsequent events have worsened
the position of Crimean Tatars. The report states that: The new political and regulatory framework
imposed on minorities following the annexation of Crimea by the Russian Federation has affected
their legal status, rights as minorities and daily life, whereby the Crimean Tatars find themselves in a
particularly precarious position.153 According to a report of Human Rights Watch (HRW) issued in
148
CoE Committee of Ministers, Report of the Advisory Committee on the Framework Convention for the Protection of
National Minorities Ad hoc visit to Ukraine 21-26 March 2014, 2 April 2014, CM(2014)46
149
150
UN OHCHR, Report on the human rights situation in Ukraine, 15 April 2014, paras 84-86. Available at:
151
Constable, P., Crimeas Tatars brace for Russian annexation, Washington Post, (12 March 2014), available at:
http://www.washingtonpost.com/world/europe/crimeas-tatars-brace-for-russian-takeover/2014/03/12/8b8ce764-a9df-11e38a7b-c1c684e2671f_story.html [accessed 24 May 2015]
152
Russia Today, Crimean parliament guarantees broader rights to Tatar minority, (11 March 2014), available at:
http://rt.com/news/crimea-tatar-rights-guarantee-122/ [accessed 24 May 2015]
153
OSCE HCNM & ODIHR, Report of the Human Rights Assessment Mission in Ukraine on the Human Rights and
Minority Rights Situation, 12 May 2014, pp. 109-110. Available at: http://www.osce.org/odihr/118476?download=true
37
November 2014, there were numerous acts that encroached upon the human rights of the Crimean
Tatar minority group after Crimea became de facto part of the Russian Federation. There have been
invasive and unwarranted searches at mosques and Islamic schools, the authorities have banned mass
public gatherings, and the Crimean Tatar representative body (the Mejlis), as well as Tatar media
outlets, have been harassed by the authorities.154 In a briefing note on Crimea by the Unrepresented
Nations and Peoples Organization (UNPO), issued in December 2014, it is reported that Crimean local
authorities have forbidden the Crimean Tatars to hold symbolic events such as the commemoration of
the deportation in 1944 and Human Rights Day.155 The rights of ethnic, religious and linguistic
minorities are protected in Article 27 of the ICCPR. This article provides that these minorities should
be able to enjoy their own culture, to profess and practice their own religion, or to use their own
language.156 It is essentially a specific right to self-determination for ethnic, religious and linguistic
minorities.157 This right of minorities should, again according to Article 5 ICCPR, not be limited by
the exercise of self-determination. However, as the abovementioned reports provide, these minority
rights have been increasingly limited since Crimeas secession from Ukraine. Apart from the group
rights of Crimean Tatars, the reports also present evidence of violations of individual human rights. It
would become too extensive to present all the violations of human rights, so I will only name a few.
One could for instance name the intrusive home searches that are frequently mentioned in the report
by HRW158, which may well be seen as violations of Article 17 ICCPR which protects against
arbitrary interference with privacy, family, home and correspondence. Or one could look at the
searches of Islamic schools, mentioned both in the HRW report and UNPO briefing note.159 These
searches can be seen as violations of Article 18 ICCPR on freedom of religion, but also as violations
of Article 13 ICESCR on the right to education. There are numerous other examples of violations to be
found in the reports discussed in this paragraph, but I believe that I have given sufficient examples to
illustrate my point that as a result of the Crimean secession individual human rights have been limited.
This, together with the encroachment upon the group rights of the Crimean Tatars, is clear evidence
that the Crimean secession has limited numerous rights of Crimean Tatars. It can thus be concluded
that the secession has negatively impacted the individual and group rights of Crimean Tatars, both in
deciding to secede as well as after the secession. This means that the secession does not comply with
154
Human Rights Watch, Rights in Retreat: Abuses in Crimea, (17 November 2014), p. 1 & pp. 9-20, available at:
http://www.hrw.org/sites/default/files/reports/crimea1114_ForUpload.pdf [accessed 25 May 2015]
155
UNPO Briefing Note, Recent Developments in Crimea and the Crimean Tatars, 11 December 2014, available at:
http://unpo.org/downloads/1147.pdf [accessed 25 May 2015]
156
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, UNTS, vol. 999, p. 171
157
Van der Vyver, JD, The Right to Self-Determination of Cultural, Religious and Linguistic Communities in South-Africa,
Potchefstroom Electronic Law Journal, Vol. 14, No. 4, (2011), p. 8.
158
Human Rights Watch, Rights in Retreat: Abuses in Crimea, (17 November 2014), pp. 15-20, available at:
159
Human Rights Watch, Rights in Retreat: Abuses in Crimea, (17 November 2014), pp. 15-20, available at:
http://www.hrw.org/sites/default/files/reports/crimea1114_ForUpload.pdf [accessed 25 May 2015] ; UNPO Briefing Note,
Recent Developments in Crimea and the Crimean Tatars, 11 December 2014, available at:
http://unpo.org/downloads/1147.pdf [accessed 25 May 2015]
38
the limitation that rights of others, in this case the rights of Crimean Tatars, impose upon the right to
self-determination through Common Article 5 of the ICCPR and ICESCR.
5.2 Conclusion
In this chapter I have focused on the limitation that rights of others impose on the ability to exercise
the right to self-determination. The limitation stems from Common Article 5(1) ICCPR and ICESCR,
which provides that nothing in the Covenants (thus including the right to self-determination enshrined
in Common Article 1) may be interpreted as implying a right to perform acts that destroy or limit the
rights and freedoms of recognised in the Covenants. This means that when a people exercise their right
to self-determination, it should not destroy or limit the rights and freedoms of others. Examples of the
limitation that rights of others impose on the exercise of self-determination are found in the Opinion
on the potential secession of Qubec by the Supreme Court of Canada, and in the opinions of the
Badinter Committee. Having established that rights of others can impose a limitation on the exercise
of the right to self-determination I analysed whether the Crimean secession should have been limited
by rights of others, and whether the secession took into account these limitations. I found that the
rights of Crimean Tatars were negatively impacted by the secession. First of all, reports from the CoE
and the UN OHCHR present the view that persons with a critical view towards the referendum,
including especially the Crimean Tatars who were vehemently opposed to joining Russia, were subject
to human rights violations. I concluded that there was no room for views that differed from those of
the Crimean authorities and that there were numerous limitations on human rights as a direct result of
the referendum. I also analysed the situation after the secession and after Crimea de facto became a
part of Russia. Reports on the situation after the secession from the OSCE, Human Rights Watch and
the UNPO confirm an increase in human rights violations against Crimean Tatars. From these reports
it can be concluded that, as a direct consequence of the secession, numerous human rights protected in
the ICCPR and ICESCR were increasingly being violated. This includes individual as well as group
rights. It has thus become clear that the rights that Crimean Tatars should enjoy are limited by the
secession. This means that the secession cannot be seen as a legitimate exercise of self-determination
in this regard, because it does not take into account the limitation of Common Article 5 ICCPR and
ICESCR. Therefore, the Crimean secession does not comply with international law in regard to the
limitation that rights of others impose on the exercise of self-determination.
39
Conclusion
Before coming to a conclusion on the legality of the Crimean secession in light of international law on
self-determination I would like to start with a recapitulation of my findings. The first chapter served to
introduce the right to self-determination. I first described how self-determination evolved from a
political principle, which emerged during the French Revolution and developed further into the
nineteenth century and early twentieth century, into a human right for all peoples enshrined in
Common Article 1 of the ICCPR and ICESCR. I then set out that self-determination can be exercised
internally and externally. In contemporary international law internal self-determination is heavily
favoured. Even in such a way that the external exercise of self-determination is only possible as a
measure of last resort. A requirement for external self-determination is that it is exercised through the
free will of the people. A valid way to achieve this is a referendum. There are some limitations on selfdetermination present in international law. These are: the rights of others, territorial integrity of states,
and limitations on the use of force. Third-state assistance to a people seeking to exercise selfdetermination is possible under international law, but it is limited to certain situations and subject to
limitations itself. I concluded the chapter with a view on those that have the right to selfdetermination: the people. There is no objective definition of the term in law, but there is a definition
by a group of UNESCO experts that could be regarded as the best definition available at this moment.
When a group of persons that identify themselves as a people is recognised as such in constitutional or
legal documents, or through state practice, it is sufficient to regard them as a people. In the second
chapter I focused on the Crimea itself. In analysing the history of the Crimean peninsula I found that
there are three distinct ethnic groups that all have a strong connection to Crimea. These are the
Ukrainians, the Russians and the Crimean Tatars. Even though the population is largely made out of
these three distinct groups, there is still enough reason to see the Crimean population as one people.
This can be deduced from the fact that Ukraine recognises Crimea as an autonomous republic with
self-determination in the Ukrainian constitution, and from the evident self-identification as a people in
the constitution of the Autonomous Republic Crimea. As a people, Crimeans should thus have a right
to self-determination. In the final paragraph I stated that Crimea had full internal self-determination
within Ukraine at the time they chose to secede. Even though the situation was unstable, there was no
indication that the Revolution posed an immediate threat to the internal exercise of self-determination
by Crimea. Since international law provides that external self-determination is only possible as a
measure of last resort under exceptional circumstances it becomes clear that Crimea, in which there
were no such exceptional circumstances, did not have a specific right to external self-determination.
This chapter already partly provided the answer to my research question: Yes, Crimea does a right to
self-determination, but they could not exercise that right externally. From the third chapter onwards I
analysed the Crimean secession in light of the requirements and limitations of the right to self-
40
determination that I have found in chapter one. The third chapter started with the requirement that the
exercise of self-determination should happen through the free and genuine expression of the will of the
people. A referendum is a legitimate way to achieve this, but then it has to adhere to certain standards.
When using the Council of Europes Code of Good Practice on Referendums alongside the situation in
which the Crimean referendum of 16 March 2014 has been held, it becomes clear that the Crimean
referendum does not meet these standards. It was not neutrally worded, the authorities were not
neutral, there was a military presence in public places and the time between the calling of the
referendum and the voting was too short. The conclusion is that the referendum cannot be seen as the
free and genuine expression of the will of the people, and this view is supported by regional and
international organisations. The second half of the chapter focused especially on Russian assistance to
the Crimean secession. Third-state assistance to a people seeking self-determination is possible in
international law, but it can only be legal if the home state takes forcible action against the people. In
Crimea this was not the case, which means that there is no basis in law for Russia to assist Crimea.
Furthermore, third-state assistance should adhere to certain limitations such as the fact that third-state
assistance should not be contrary to the purposes and principles of the UN Charter. By deploying
troops to Crimea, Russia has violated the UN Charter principle of prohibition of use of force against
the territorial integrity of another state. It can be concluded that Russian assistance has only frustrated
the legality of the Crimean secession. The military presence is partially responsible for the fact that the
referendum cannot be seen as the free and genuine expression of the will of the people, and the illegal
assistance by Russia violated one of the core principles of international law. In the fourth chapter I
analysed the Crimean secession in light of the limitation that territorial integrity presents for the right
to self-determination. Territorial integrity is often seen as the greatest stumbling block for peoples to
exercise self-determination. I have, however, found that there exists a balance between the right to
self-determination and the principle of territorial integrity. From numerous sources it is clear that
when self-determination can be fully exercised internally it will never affect the territorial integrity of
the state. States can thus only claim the safeguard of territorial integrity when they comply with the
principle of equal rights and self-determination of peoples internally. This also implies that when
internal self-determination is not possible, territorial integrity cannot be invoked as a limitation to the
exercise of external self-determination. I found that Crimea enjoyed full internal self-determination as
an autonomous republic within Ukrainian territory, and that there was no reason to assume that this
internal self-determination would be limited by the Ukrainian Revolution. This means that the
Ukrainian territorial integrity should have been safeguarded against actions that would impair it. In the
second paragraph of the chapter I analysed the ICJs view on territorial integrity and secession in the
Kosovo Advisory Opinion. While the Court considers that the principle of territorial integrity does not
prohibit the right to secede, it does not consider the specific relation between secession as the exercise
of self-determination and the principle of territorial integrity. This narrow approach means that the
previous arguments on that relation are not affected by the Kosovo Advisory Opinion. Thus, the
41
Crimean people should have respected the territorial integrity of Ukraine and should have continued to
exercise self-determination internally. Since the Crimea nevertheless altered the territory of Ukraine
through seceding while claiming a right to self-determination, it should be regarded that the Crimean
secession conflicts with the limitation of territorial integrity imposed by international law on the right
to self-determination. The secession should thus be seen as non-compliant with international law on
the exercise of self-determination in this regard. The fifth and final chapter was based on a human
rights approach. I argued that Crimeas secession could not be a legitimate exercise of selfdetermination in light of the limitation that rights of others impose upon the right to selfdetermination. This limitation is enshrined in Common Article 5 ICCPR and ICESCR, which
essentially states that nothing in the Covenants gives a right to perform acts that limit or destroy the
rights that others enjoy through these Covenants. In Crimea, I found that the secession does not take
into account rights of others. As an example I used the rights of Crimean Tatars, a significant minority
group in Crimea. Reports from organisations such as the CoE and the UN OHCHR present the view
that the Crimean Tatars, who were opposed to the referendum, were subject to human rights
violations. The actions of Crimean authorities limited the human rights of those that were against the
referendum. After the secession the situation worsened. Reports from the OSCE and from civil society
state that there is an increase in human rights violations against Crimean Tatars since Crimea de facto
became part of Russia. The consequence of the secession is thus that numerous individual as well as
group rights protected in the ICCPR and ICESCR were increasingly being violated. I concluded that
the Crimean secession cannot be seen as a legitimate exercise of self-determination, because it does
not take into account the limitation of Common Article 5 ICCPR and ICESCR. Therefore, the
Crimean secession does not comply with international law in regard to the limitation that rights of
others impose on the exercise of self-determination.
Evidently, the general conclusion is that Crimea did have a right self-determination, but that right
could and thus should be exercised internally. The secession undertaken by Crimea under the premises
that it was an exercise of their right to self-determination is thus not a legal exercise of selfdetermination. Consequently, there is no legality in any of the actions taken surrounding the secession
from Ukraine in light of the requirements and limitations that exist in international law on the right to
self-determination. First of all, the referendum of 16 March 2014 cannot be considered as being a free
and genuine expression of the will of the people. Russian assistance to the secession was illegal since
Ukraine did not use force against Crimea, and Russias military presence on the peninsula was a
violation of the prohibition of use of force against the territorial integrity of another state.
Furthermore, the secession violated the territorial integrity of Ukraine, which should have been
safeguarded as Ukraine allowed full internal self-determination for Crimea. Finally, the secession also
fails to be a legitimate exercise of self-determination because it does not take into account the
limitation that rights of others impose on self-determination through Common Article 5 ICCPR and
42
ICESCR. As a consequence of this conclusion, Crimea cannot rely on the right to self-determination to
legitimise their secession from Ukraine, and it has to be understood that Crimea de jure maintains its
status as Autonomous Republic Crimea within the state of Ukraine. The majority of states seem to
support this viewpoint and implicitly condemn the current position of Crimea, now de facto part of the
Russian Federation, as an illegal annexation of Crimea by Russia in General Assembly Resolution
68/262.160 There were, however some states that acknowledged the secession of Crimea, with Russia
obviously being the most prominent,161 but not the only one.162 This is exactly what illustrates in my
mind the most prominent problem surrounding the right to self-determination, its clarity. That is why I
would like to end this thesis with some general remarks on the future of the right to self-determination
and its position in international law. During the research for this thesis I found that the requirements
and limitations on the right to self-determination are spread throughout many international documents,
which is not helpful to form a coherent view on the matter. In the end, the case of Crimea and the
subsequent reaction by the international community have shown how the right to self-determination
cannot be legally exercised under contemporary international law. But to prevent situations like the
one in Crimea to happen with other peoples and to achieve consensus in the international community it
would be a significant development if there was to come one international document in which all the
requirements and limitations that international imposes upon the right to self-determination are
gathered. It is, however, impossible to imagine how the right to self-determination will develop in the
future, considering the huge development the right has undergone in the past. As for now, it could be
said that the Crimean case has not had a significant impact on the general view of what the right to
self-determination entails. It does not broaden nor narrow this right, but it keeps in line with the latest
developments. While the situation in Crimea may be irreversible, I do not believe that this changes the
view on self-determination in the future. The right to self-determination is an important human right,
but it has, and will keep, its requirements and limitations in international law that a people has to
adhere to when seeking to exercise the right.
160
UN General Assembly, Resolution 68/262. Territorial integrity of Ukraine, 27 March 2014, UN Doc. A/RES/68/262
President of Russia, Executive Order on recognising Republic of Crimea, 17 March 2014, available at:
http://en.kremlin.ru/events/president/news/20596 [accessed 31 May 2015]
162
Rosenberg, M., Breaking With the West, Afghan Leader Supports Russias Annexation of Crimea, New York Times, (23
March 2014), available at: http://www.nytimes.com/2014/03/24/world/asia/breaking-with-the-west-afghan-leader-supportsrussias-annexation-of-crimea.html?ref=asia&_r=0 [accessed 31 May 2015]
161
43
Bibliography
International instruments and documents:
Declaration on the Granting of Independence to Colonial Countries and Peoples, UN GAOR 1514
(XV), 14 December 1960, A/RES/1514 (XV).
UN GAOR 1541 (XV), 15 December 1960, A/RES/1541 (XV).
UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16
December 1966, UNTS, vol. 993.
UN General Assembly, International Covenant on Civil and Political Rights, 16 December
1966, UNTS, vol. 999.
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among
States in accordance with the Charter of the United Nations, UN GAOR 2625 (XXV), 24 October
1970, A/RES/2625 (XXV).
Final Act of the Conference on Security and Co-operation in Europe (Helsinki Final Act), 1 August
1975, 14 ILM 1292, (1975).
Treaty on the Final Settlement With Respect to Germany, 12 September 1990, 29 ILM 1186, (1990),
p. 1188.
World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993,
UN Doc. A/CONF.157/23, 12 July 1993.
Venice Commission, Study No. 371/2006, Code of Good Practice on Referendums, 19 March 2007,
CDL-AD(207)008.
UN GAOR, 80th plenary meeting of the 68th session, 27 March 2014, UN Doc. A/68/PV.80.
UN General Assembly, Resolution 68/262. Territorial integrity of Ukraine, 27 March 2014, UN Doc.
A/RES/68/262.
National instruments and documents:

Decree of the Russian Soviet Federative Socialist Republic Council of Ministers, 'Concerning the
Transfer of the Crimean Oblast' from the RSFSR to the UkSSR', 5 February 1954, History and Public
Policy Program Digital Archive, TsGA RSFSR [GARF]. F.259. Op.1. D.645. L.159. Published in
"Istoricheskii arkhiv"(1992). Translated for CWIHP by Gary Goldberg, available at:
http://digitalarchive.wilsoncenter.org/document/119634 [accessed 25 March 2015]
1996 Constitution of Ukraine, 28 June 1996, English translation available at:
http://www.wipo.int/wipolex/en/text.jsp?file_id=180743 [accessed 30 March 2015]
1998 Constitution of Crimea, 21 October 1998, English translation available at:
http://www.rada.crimea.ua/en/bases-of-activity/konstituciya-ARK [accessed 31 March 2015]
44
2001 Census results of the national structure of Crimea, State Statistics Committee of Ukraine,
available at: http://2001.ukrcensus.gov.ua/eng/results/general/nationality/Crimea/ [accessed 26 March
2015]
President of Russia, Executive Order on recognising Republic of Crimea, 17 March 2014, available
at: http://en.kremlin.ru/events/president/news/20596 [accessed 31 May 2015]
Case law:
Western Sahara Advisory Opinion, International Court of Justice (ICJ), 16 October 1975, I.C.J.
Reports 1975, p. 12.
Case Concerning East Timor (Portugal v. Australia), International Court of Justice (ICJ), 30 June
1995, I.C.J. Reports 1995, p. 90.
Canadian Supreme Court, Reference Re Secession of Qubec, 20 August 1998, (1998) 2 S.C.R. 217.
Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, International Court of Justice (ICJ), 22 July 2010, I.C.J Reports 2010, p.
403.
Reports, opinions and general comments:

UN Human Rights Committee, CCPR General Comment 12, 13 March 1984, HRI/GEN/1/Rev.9 (Vol
I) p. 183.
Final Report and Recommendations of an International Meeting of Experts on the Further Study of the
Concept of the Right of People for UNESCO, 22 February 1990, SNS-89/CONF.602/7.
Badinter Committee, Opinion No. 4, 11 January 1992, 31 ILM 1495, (1992).
UNESCO Division of Human Rights Democracy and Peace & Centre UNESCO de Catalunya, The
Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention: Report of
the International Conference of Experts held in Barcelona from 21 to 27 November 1998. Available
at: http://www.unpo.org/downloads/THE%20IMPLEMENTATION%20OF%20THE%20RIGHT%20
TO%20SELF.pdf [accessed 26 May 2015]
Venice Commission, Opinion no. 762/2014 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 Crimeas 1992 Constitution is
Compatible with Constitutional Principles, 21 March 2014, CDL-AD(2014)002.
CoE Committee of Ministers, Report of the Advisory Committee on the Framework Convention for
the Protection of National Minorities Ad hoc visit to Ukraine 21-26 March 2014, 2 April 2014,
CM(2014)46
UN OHCHR, Report on the human rights situation in Ukraine, 15 April 2014. Available at:
www.ohchr.org/Documents/Countries/UA/Ukraine_Report_15April2014.doc [accessed 30 April
2015]
OSCE HCNM & ODIHR, Report of the Human Rights Assessment Mission in Ukraine on the
Human Rights and Minority Rights Situation, 12 May 2014, pp. 109-110. Available at:
http://www.osce.org/odihr/118476?download=true [accessed 25 May 2015]
45
Reports by non-governmental organisations:

Human Rights Watch, Rights in Retreat: Abuses in Crimea, (17 November 2014). Available at:
UNPO Briefing Note, Recent Developments in Crimea and the Crimean Tatars, (11 December
2014). Available at: http://unpo.org/downloads/1147.pdf [accessed 25 May 2015]
Statements and addresses:

UK Government press release, Crimea referendum should not convince anyone, says William
Hague, (16 March 2014), available at: https://www.gov.uk/government/news/crimea-referendumshould-not-convince-anyone-says-william-hague [accessed 23 April 2015]
President of Russia, Address by President of the Russian Federation, (18 March 2014), English
transcript, available at: http://en.kremlin.ru/events/president/news/20603 [accessed 16 April 2015]
President of Russia, Direct Line with Vladimir Putin, (17 April 2014), English transcript, available
at: http://en.kremlin.ru/events/president/news/20796 [accessed 29 April 2015]
(Contributions in) books:

Bowring, B., The Crimean autonomy: innovation or anomaly?, in: Weller, M. and Wolff, S. (eds.),
Autonomy, Self-governance and Conflict Resolution. Innovative approaches to institutional design in
divided societies, e-book edition, Taylor & Francis e-library, 2005.
Cassese, A., Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press,
Cambridge, 1995.
Castellino, J., International Law and Self-Determination: Peoples, Indigenous Peoples, and
Minorities, in: Walter, C., von Ungern-Sternberg, A., and Abushov, K. (eds.), Self-Determination and
Secession in International Law, Oxford University Press, Oxford, 2014.
Clement Hall, M., The Crimea A Very Short History, M. Clement Hall, 2014.
Hannum, H., Self-Determination in the Post-Colonial Era, in: Clark, D. and Williamson, R. (eds.),
Self-Determination: International Perspectives, Macmillan Press, London, 1996.
Kolstoe, P., Russians in the Former Soviet Republics, C. Hurst & Co., London, 1995, pp. 190-191.
Kuzio, T., Ukraine Crimea Russia: Triangle of Conflict, ibidem-Verlag, Stuttgart, 2007.
McCorquodale, R. and Hausler, K., Caucuses in the Caucasus: The Application of the Right of SelfDetermination, in: Green, J. and Waters, C. (Eds.), Conflict in the Caucasus: Implications for
International Legal Order, Palgrave Macmillan, Basingstoke, 2010.
McCorquodale, R., Groups Rights, in: Moeckli, D., Shah, S., and Sivakumaran, S. (eds.),
International Human Rights Law, Second Edition, Oxford University Press, Oxford, 2014.
McWhinney, E., Self-Determination of Peoples and Plural-Ethnic States in Contemporary
International Law. Failed States, Nation-building and the Alternative, Federal Option, Martinus
Nijhoff Publishers, Leiden, 2007.
46
Oeter, S., The Role of Recognition and Non-Recognition with Regard to Secession, in: Walter, C.,
von Ungern-Sternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International
Law, Oxford University Press, Oxford, 2014.
Radan, P., The Break-up of Yugoslavia and International Law, Routledge, London and New York,
2002.
Sasse, G., The Crimean Question: Identity, Transition, and Conflict, Harvard University Press,
Cambridge, 2007.
Walter, C., Postscript: Self-determination, Secession, and the Crimean Crisis 2014, in: Walter, C.,
von Ungern-Sternberg, A., and Abushov, K. (eds.), Self-Determination and Secession in International
Law, Oxford University Press, Oxford, 2014.
Journal articles:
Brilmayer, L., Secession and Self-Determination: A Territorial Interpretation, Yale Journal of
International Law, Vol. 16:177, (1991).
Burke-White, W.W., Crimea and the International Legal Order, University of Pennsylvania Law
Faculty Scholarship, Paper 1360, (2014). Available at:
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2360&context=faculty_scholarship
Chen, L-C., Self-Determination and World Public Order, Notre Dame Law Review, Vol. 66:1287,
(1991).
Demissie, D., Self-Determination Including Secession vs. The Territorial Integrity of Nation-States:
A Prima Facie Case for Secession, Suffolk Transnational Law Review, Vol. 20:165, (1996).
Emerson, R., Self-Determination, American Journal of International Law, Vol. 65:459, (1971).
Hanna, R.M., Right to Self-Determination in In Re Secession of Quebec, Maryland Journal of
International Law, Vol. 23, Issue 1, (1999).
Pavkovi, A. and Radan, P., In Pursuit Of Sovereignty And Self-Determination: Peoples, States And
Secession In The International Order, Macquarie Law Journal, Vol. 3, (2003).
Tancredi, A., The Russian annexation of the Crimea: questions relating to the use of force, Questions
of International Law, Zoom out I, (2014).
Urrutia, I., Territorial Integrity and Self-Determination: The Approach of the International Court of
Justice in the Advisory Opinion on Kosovo, Revista dEstudis Autonmics i Federals, Vol. 16,
(2012).
Van der Vyver, JD, The Right to Self-Determination of Cultural, Religious and Linguistic
Communities in South-Africa, Potchefstroom Electronic Law Journal, Vol. 14, No. 4, (2011).
Weller, M. Settling Self-determination Conflicts: Recent Developments, EJIL, Vol. 20, No. 1,
(2009).
47
News items and newspaper articles:

Baker, P., Sovereignty vs. Self-Rule: Crimea Reignites Battle, New York Times, (8 March 2014),
available at: http://www.nytimes.com/2014/03/09/world/europe/crimea-crisis-revives-issue-ofsecessions-legitimacy.html
BBC News, Crimean parliament formally applies to join Russia, (17 March 2014), available at:
BBC News, Ukraine crisis: Leaders agree peace roadmap, (12 February 2015), available at:
BBC News, Ukraine crisis in maps, (18 February 2015), available at:
Brilmayer, L., Why the Crimean referendum is illegal, The Guardian, (14 March 2014), available at:
http://www.theguardian.com/commentisfree/2014/mar/14/crimean-referendum-illegal-internationallaw [accessed 20 April 2015]
Constable, P., Crimeas Tatars brace for Russian annexation, Washington Post, (12 March 2014),
available at: http://www.washingtonpost.com/world/europe/crimeas-tatars-brace-for-russiantakeover/2014/03/12/8b8ce764-a9df-11e3-8a7b-c1c684e2671f_story.html [accessed 24 May 2015]
Herszenhorn, D.M., Crimea Votes to Secede From Ukraine as Russian Troops Keep Watch, NY
Times, (16 March 2014), available at: http://www.nytimes.com/2014/03/17/world/europe/crimeaukraine-secession-vote-referendum.html?_r=0 [accessed 20 April 2015]
Higgins, A., With Presidents Departure, Ukraine Looks Towards a Murky Future, New York Times,
(22 February 2014), available at: http://www.nytimes.com/2014/02/23/world/europe/with-presidentsdeparture-ukraine-looks-toward-a-murkyfuture.html?action=click&contentCollection=
Europe&module=Related Coverage&region=Marginalia&pgtype=article [accessed 29 May 2015]
Lally, K., Putins remarks raise fear of future moves against Ukraine, The Washington Post, (17
April 2014), available at: http://www.washingtonpost.com/world/putin-changes-course-admitsrussian-troops-were-in-crimea-before-vote/2014/04/17/b3300a54-c617-11e3-bf7abe01a9b69cf1_story.html [accessed 20 April 2015]
OSCE press release, Developing situation in Crimea alarming, says OSCE High Commissioner on
National Minorities, (6 March 2014), available at: http://www.osce.org/hcnm/116180 [accessed 2
April 2015]
Prentice, A., East and West face off over Ukraines Crimea, Reuters, (26 February 2014), available
at: http://www.reuters.com/article/2014/02/26/us-ukraine-crisis-crimea-idUSBREA1P23U20140226
Rosenberg, M., Breaking With the West, Afghan Leader Supports Russias Annexation of Crimea,
New York Times, (23 March 2014), available at:
http://www.nytimes.com/2014/03/24/world/asia/breaking-with-the-west-afghan-leader-supportsrussias-annexation-of-crimea.html?ref=asia&_r=0 [accessed 31 May 2015]
Russia Today, Crimea parliament declares independence from Ukraine ahead of referendum, (11
March 2014), available at: http://rt.com/news/crimea-parliament-independence-ukraine-086/ [accessed
23 April 2015]
48
Russia Today, Crimean parliament guarantees broader rights to Tatar minority, (11 March 2014),
available at: http://rt.com/news/crimea-tatar-rights-guarantee-122/ [accessed 24 May 2015]
Sneider, N., 2 Choices in Crimea Referendum, but Neither Is No, NY Times, (14 March 2014),
available at: http://www.nytimes.com/2014/03/15/world/europe/crimea-vote-does-not-offer-choice-ofstatus-quo.html [accessed 17 April 2015]
Walker, S. and Traynor, I., Ukraine crisis: Crimea now part of Russia, local parliament declares, The
Guardian, (6 March 2014), available at: http://www.theguardian.com/world/2014/mar/06/ukrainecrisis-crimea-part-of-russia-local-parliament-declares [accessed 23 April 2015]
Yuhas, A., Ukraine crisis: an essential guide to everything thats happened so far, The Guardian, (13
April 2014), available at: http://www.theguardian.com/world/2014/apr/11/ukraine-russia-crimeasanctions-us-eu-guide-explainer [accessed 29 May 2015]
49

The Right To Self-Determination - A Case Study of The Crimean Secession PDF

Uploaded by

Copyright:

Available Formats

You might also like

The Right To Self-Determination - A Case Study of The Crimean Secession PDF

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Right To Self-Determination - A Case Study of The Crimean Secession PDF

Uploaded by

Copyright:

Available Formats

The Right to Self-Determination:

A Case Study of the Crimean

By: M.C.J. van Tilborg

1. Self-determination under international law

1.1 Historical development

1.2 Status and Scope in contemporary international law

1.3 The people

2. The Crimean people and their right to selfdetermination

2.1 History of the Crimea and its population

2.2 The Crimean people

2.3 The exercise of self-determination by Crimea

3. The secession and the role of Russia

3.1 The free expression of the will of the people

3.2 Assistance from a third state

4. The territorial integrity of Ukraine

4.1 Territorial integrity and self-determination

4.2 The Advisory Opinion on Kosovo by the International Court of

5. The rights of others as a limitation to selfdetermination

5.1 The rights of Crimean Tatars

National instruments and documents:

Reports, opinions and general comments:

Reports by non-governmental organisations:

Statements and addresses:

(Contributions in) books:

News items and newspaper articles:

You might also like