German Law Journal-Ukraine Issue

GERMAN LAW JOURNAL
Review of Developments in
German, European and International Jurisprudence
Editor–in–Chief
Russell A. Miller
Senior Editors
Betsy Baker; Jürgen Bast; Nina Boeger; Gralf-Peter Calliess; Matthias Casper; Patrycja Dabrowska;
Jen Hendry; Elisa Hoven; Malcolm MacLaren; Stefan Magen; Ralf Michaels; Christoph Safferling;
Emanuel Towfigh; Floris de Witte
Associate Editors
Matej Avbelj; Matthias Goldmann; Agnieszka Janczuk-Gorywoda; Jule Mulder;
Anna Katharina von Oettingen; Emanuela Orlando; Niels Petersen; Karsten Schneider
www.germanlawjournal.com
© Copyright 2000 – 2015 by German Law Journal GbR. All rights reserved.
ISSN: 2071-8322 / ISSNL: 2071-8322
Vol. 16 No. 03 Pages 350-712 01 July 2015
Table of Contents
Special Issue
THE CRISIS IN UKRAINE

Guest Editor: Zoran Oklopcic
Zoran Oklopcic
Introduction: The Crisis in Ukraine Between the 350-364

Law, Power, and Principle
Jure Vidmar
The Annexation of Crimea and the Boundaries of 365-383

the Will of the People
TABLE OF CONTENTS PAGE I

Table of Contents - Continued
Brad R. Roth
The Virtues of Bright Lines: Self-Determination, 384-415

Secession, and External Intervention
Mikulas Fabry
How to Uphold the Territorial Integrity of Ukraine 416-433
Umut Özsu
Ukraine, International Law, and the Political 433-451

Economy of Self-Determination
Outi Korhonen
Deconstructing the Conflict in Ukraine: The 452-478

Relevance of International Law to Hybrid States
and Wars
Boris N. Mamlyuk
The Ukraine Crisis, Cold War II, and International 479-522

Law
Stephen Tierney
Sovereignty and Crimea: How Referendum 523-541

Democracy Complicates Constituent Power in
Multinational Societies
Yaniv Roznai & Silvia Suteu
The Eternal Territory? The Crimean Crisis and 542-350

Ukraine’s Territorial Integrity as an Unamendable
Constitutional Principle
TABLE OF CONTENTS PAGE II

Table of Contents - Continued
Amandine Catala
Secession and Annexation: The Case of Crimea 581-607
Ayelet Banai
Territorial Conflict and Territorial Rights: The 608-630

Crimean Question Reconsidered
Malcolm MacLaren
“Trust the People”? Democratic Secessionism and 631-657

Contemporary Practice
Zoran Oklopcic
The Idea of Early-Conflict Constitution-Making: The 658-690

Conflict in Ukraine Beyond Territorial Rights and
Constitutional Paradoxes
Andrew Arato
International Role in State-Making in Ukraine: The 691-712

Promise of a Two-Stage Constituent Process
TABLE OF CONTENTS PAGE III

The Crisis in Ukraine
Introduction: The Crisis in Ukraine Between the Law, Power,

and Principle
By Zoran Oklopcic*
Abstract
This special issue of German Law Journal (GLJ) originates from a colloquium co-sponsored
by the GLJ, the Miller Institute for Global Challenges and the Law, and the Center for
Constitutional Transitions that took place at the Berkeley School of Law in February 2015,
just over a year after the revolutionary events at Maidan Square in Kiev triggered profound
changes in the geopolitical map of contemporary Europe and shook the foundations of
international order.
Beyond the gravity of the crisis itself, what animates the contributions in the following
pages is an attendant awareness of the need to rethink the appropriateness of disciplinary
responses to the conflict in Ukraine. Though the rhetoric of brazen takeovers, cynical ploys,
stealing and redeeming, chronic authoritarianism and imperialism, hypocrisy, and broken
promises have all contributed to a combustible political situation in and around Ukraine, a
diverse sense of outrage has also been subtly, but nonetheless decisively, structured and
amplified by the vocabularies of international and constitutional law, moral arguments,
and their complicated interplay. Though differing in their practical ambitions, technical
vocabulary, and the professional sensibilities they cultivate, the disciplines of international
law, comparative constitutional law, and normative political theory, have each upheld one
of the most important components of the modern social imaginary: The idea of popular
1
sovereignty.
The idea that the will of the people ought to be a decisive factor in resolving the crisis in
Ukraine continues to unite most commentators, partisans, and scholars, irrespective of
their otherwise profound ideological and political differences. From the perspective of
overarching social imaginary, the ominous geopolitical crisis in Ukraine, while dangerous in
its potential outcomes, appears as a family quarrel among the believers of the
constitutional creed of western political modernity. Unlike another geopolitical crisis of our
time—the attempts of ISIS to redraw the map of the Middle East—the situation in Ukraine
* Associate Professor, Department of Law and Legal Studies, Carleton University, Ottawa. (email:
zoran.oklopcic@carleton.ca)
1
CHARLES TAYLOR, MODERN SOCIAL IMAGINARIES 109–43 (2004).
2015 Introduction 351
is not a conflict over the existence of international legal order, but rather one over the
meaning of its foundational building blocks: The internal and external self-determination of
peoples, territorial integrity, and the sovereign equality of independent states.
A. Between Self-Determination and Territorial Integrity: Doctrinal Frames of

International Law
The first three contributions in this volume thematize this quarrel from the perspective of
public international law. Judging the legal merits of the secession of Crimea, Jure Vidmar
starts from the basics, noting that international law is not necessarily hostile to all
unilateral attempts to change existing territorial arrangements, even though it generally
2
favors existing international borders. The International Court of Justice (ICJ)’s Kosovo
Advisory Opinion (2010) highlighted the boundaries of this agnosticism: International law
abandons its neutrality towards unilateral declarations of independence (UDI) in situations
where they are used to consolidate a new territorial status quo after a violation of jus
cogens. Vidmar argues that given the Russian use of force, or threat of force, Crimea’s UDI
must be seen as illegal under international law.
In defending the illegality of the Crimean secession and annexation, Vidmar rejects Russian
claims that Crimea’s secession can be justified on the grounds of remedial self-
determination. Vidmar argues that not only was there no widespread and systematic
oppression of ethnic Russians in Crimea, but also that in general the right to remedial self-
determination in international law remains weak. Outside the context of decolonization,
recent jurisprudence, such as the Secession Reference of the Supreme Court of Canada,
actually testifies to the hesitant approach towards external self-determination.
3
Brad Roth’s article reaches a similar conclusion. He defends the “few bright lines” that
contemporary international law has drawn around the phenomenon of territorial conflict,
providing a forceful defense of the territorial integrity of Ukraine by dismissing issues like
Yanukovich’s unconstitutional ouster and the Crimean popular referendum. The reason
why the government in Kiev has a right to attempt to reinstate its sovereignty, while pro-
Russian rebels do not have a right to receive external help, arises not from the conjured
moral existence of the inviolate “people of Ukraine”—and the corresponding, equally
conjured non-existence of the “peoples” of Lugansk and Donetsk—but simply from the
macro moral imperatives and wider political purposes of international legal order. The
imperative of “bounded pluralism,” the respectful accommodation of political differences
among polities which radically disagree about the standards of political justice, justifies
trial by ordeal—a deliberately unequal struggle between the governmental and
2
Jure Vidmar, The Annexation of Crimea and the Boundaries of the Will of the People, 16 GERMAN L.J. 365 (2015).
3
Brad Roth, The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention, 16 GERMAN L.J.
384 (2015).
352 German Law Journal Vol. 16 No. 03
secessionist forces—which alone, albeit with some exceptions, ought to determine the
destiny of contested territory.
Anticipating challenges from other contributors, Roth argues that “the more responsive
the applicable law becomes to considerations that can be branded as either so
controverted as to be parochial, or so open-textured as to be indeterminate, the less that
international law can serve to mobilize broad-based opposition to cross-border mischief
4
and predation.” While he understands the crisis in Ukraine as a powerful testament for
the need to resist intra- or inter-disciplinary “muddying [of] the waters,” he nonetheless
admits that past encounters between international law and the secessionist conflicts in the
former Yugoslavia have contributed to the corrosion of its contemporary appeal. Although
the Opinions of Badinter’s Commission (1991–1992) concerning the legal aspects of the
Yugoslav dissolution may have been politically justified, they were an “intellectually
dishonest” and unacknowledged innovation, “neither reflective of existing legal doctrines
5
nor generative of new ones likely to be applied going forward.” Likewise, the ICJ’s Kosovo
Advisory Opinion (2010), in its recourse to “hyper-formalism,” evaded clarifying the right
to self-determination in the context of territorial conflict following decolonization.
Accepting Vidmar’s and Roth’s legal qualifications of the conflict in Ukraine, Mikulas Fabry
asks how the international community ought to react to Russia’s violation of Ukraine’s
6
territorial integrity. Fabry charts a middle course between two equally inadequate
responses. On the one hand, he rejects the “accommodationist” claims of those who see
Crimea as lost for good, arguing that the international community should reconcile itself
with the Russian fait accompli. On the other hand, he likewise rejects “hawkish” positions
and their calls for more robust counter-measures aimed at rolling back Russia’s territorial
gains in Ukraine. Instead, he stresses the importance of non-recognition as a widely
employed countermeasure, defending it from charges of presumed ineffectiveness. Fabry
argues that non-recognition of illegally acquired territories, “for all its inherent limitations,
7
actually has a respectable history.”
B. Class Struggles, Professional Commitments and Wider Frames: Enlarging the

Perspective of International Law
The contributions that follow complicate and challenge Vidmar’s, Roth’s, and, to an extent,
Fabry’s arguments. They do so by departing from the way academic conversations about
self-determination and territorial integrity are habitually staged in collaborative
4
Id. at 387.
5
Id.
6
Mikulas Fabry, How to Uphold the Territorial Integrity of Ukraine, 16 GERMAN L.J. 416 (2015).
7
Id. at 417.
international legal scholarship. Rather than staying in the register of doctrine—and

offering counter-doctrinal arguments—the next three contributions upset traditional
approaches by interrogating the professional commitments of international lawyers,
insisting on the legal and factual hybridity of the conflict, and exposing larger ideational
frames and their socio-economic underpinnings that make the conflict in Ukraine legally
legible in a particular way.
In that spirit, Umut Özsu’s article explicitly seeks to “destabilize the assumption that self-
determination can be restricted to a ‘purely legal’ analysis of the sort to which many
8
international legal scholars have conventionally confined themselves.” Özsu focuses on
some of the causes of “discursive complexity” that many lawyers seek to reduce by
resorting to doctrinal arguments. In particular, he focuses on the way lawyers’ positivistic
mindset leads them to “mystify and obfuscate” “concrete politico-economic pressures”
9
that have critically contributed to the gravity of the conflict in Ukraine. Rather than
understanding self-determination exclusively in terms of national(istic) struggles over
territorial sovereignty, Özsu suggests that “the real social power of self-determination
10
discourse” also lies in “its ability to formalize radically different class projects.”
Outi Korhonen also focuses on the socioeconomic register of self-determination struggles.

She complements Özsu by providing a detailed description of networks, private interests,
and business conglomerates that have shaped the conflict in Ukraine, undermining the
simplistic “billiard ball” account of modern statehood that contemporary international law
11
continues to assume as one of its founding fictions. For Korhonen, rather than being
categorized as a simple aggression, violation of territorial sovereignty, or matter of self-
determination, the conflict in Ukraine is an example not only of hybrid warfare, but also of
hybrid statehood.
Hybridity presents an international lawyer, dissatisfied with the doctrinal approach to the
conflict in Ukraine, with a three-fold choice: (1) one can withdraw into a morally
discredited Lorimerian “relativism,” embracing the factual hierarchy among sovereign
states; or (2) focus on the instrumental roles played by diverse actors as they traverse the
fragile and porous boundary between the public and the private sphere, or the inside and
the outside of sovereign statehood; (3) in contrast to both—and rejecting Roth’s warning
against “muddying the waters”—Korhonen calls for a “situational critique” of the doctrinal
8
Umut Özsu, Ukraine, International Law and the Political Economy of Self-Determination, 16 GERMAN L.J. 434, 434
(2015).
9
Id. at 439.
10
Id.
11
Outi Korhonen, Deconstructing the Conflict in Ukraine: The Relevance of International Law to Hybrid States and
Wars, 16 GERMAN L.J. 452 (2015).
project of international law, embracing the law’s “softening” and increasing fuzziness.
Korhonen believes that a situational critique serves an important aspirational value by
“assist[ing] [in the] transition towards the ideals behind legal concepts” such as sovereign
statehood. For her, such “floating legal analysis” is “[no] different from interdisciplinary
and comparative legal studies that emphasize embeddedness and situatedness of objects
and subjects.” If international lawyers paid keen attention to the situation on the ground,
they would become more attuned to the “distributional consequences” and “contingent
interests” of various groups in conflict.
In the final part of this section, Boris Mamlyuk joins Özsu and Korhonen in their call to
recognize the class dimension of self-determination within its richer political-economic
12
context. More specifically, he devotes attention to a wider issue of geopolitical struggle
among different forms of capitalism that subtly, but decisively, frame not only the conflict
in Ukraine, but also international lawyers’ attempts to justify their responses to it. For
Mamlyuk, the positivistic legal responses to Cold War II replicate Cold War legal discursive
13
strategies and, in doing so, conceal the true nature of the conflict.
Taking issue with Roth’s embrace of trial-by-ordeal in the context of domestic political
struggle, Mamlyuk points to the factual difference between the conflict in Ukraine and the
framework Roth relies on. In Ukraine, it is not only foreign states providing external
assistance to the Ukrainian state fighting secessionists. In addition, a myriad of “foreign-
domestic private-public actors” continue to use their private resources to suppress the
uprising as a way of consolidating economic control in Ukraine. The epistemic complexity
that accompanies the identification of the fault-lines in the conflict—and justifies Roth’s
trial by ordeal—exemplifies a larger problem of doctrinal approaches to international law.
The moral force of doctrinal syllogisms, reliant on legally relevant factual premises, is
greatly reduced in conflicts—such as in Ukraine—already marred by chronic
misinterpretations.
Taken together, the contributions of Vidmar, Roth, Fabry, Özsu, Korhonen, and Mamlyuk
engage the conflict in Ukraine from two competing perspectives internal to the discipline
of international law. In doing so, they help identify the costs and benefits of “doing”
international law in a particular way. But international law, irrespective of its discursive
dominance in debates about the conflict in Ukraine, is not the only generator of legal,
political, moral, and prudential judgments that percolate in domestic and international
public spheres. The next two contributions temporarily exit the field of international law
and instead approach the crisis in Ukraine from the fields of comparative constitutional law
and constitutional theory.
12
Boris Mamlyuk, The Ukraine Crisis, Cold War II, and International Law, 16 GERMAN L.J. 479 (2015).
13
See generally, id.
C. The Crisis in Ukraine: Between Democratic Legitimacy and Constitutional Identity
From that broad perspective, the moral pull of international law norms appears more
questionable, especially given the rising prominence and proliferation of constitutional
referendums being used not only to amend existing constitutions or legitimize successful
revolutions, but also to establish the foundation of new states. As Stephen Tierney argues
in his contribution, the proliferation of independence referendums since the early 1990s
has furthered the “deep pathology of uncertainty” that surrounds the right to self-
14
determination, contributing to the “collapsing normative authority of international law.”
While Roth invites us to bracket international legal responses to the dissolution of
Yugoslavia as problematic and dangerous, Tierney portrays the “confused, contested, and
messy” responses to independence referendums as a symptom of the international order’s
15
incapacity to address the challenge such referendums pose to democratic legitimacy.
The Kosovo decision led to “new gaps in an already fragmented legal regime,” says Tierney,
and contributed to the increased political relevance of referendums in resolving territorial
disputes. Likewise, the Supreme Court of Canada’s Secession Reference (1998) has given
referendums additional moral dignity. While Vidmar read the Secession Reference with an
eye to its lack of doctrinal contribution to public international law, Tierney is more
interested in reconstructing its deeper moral significance. Like Oklopcic later in this
volume, Tierney interprets it as requiring the organs of the Canadian constitutional order
to negotiate towards satisfying clearly manifested secessionist desires, even if the Supreme
Court itself has not explicitly recognized Quebec’s right to secede.
Perfectly aware of the problems surrounding the definition of the political “self” and the
identification of its “will,” Tierney nonetheless tempers Roth’s epistemic skepticism about
the impossibility of authoritatively ascertaining the will of the people by insisting on
referendums’ normatively relevant “totemic resonance.” Instead of calling on international
law to legitimize the Crimean referendum—or to reform itself through a moral reading of
the Secession Reference—Tierney ends his article with a more modest call, echoed by Roth:
International lawyers should recognize the role played by international legal arguments in
amplifying the political resonance of independence referendums in contemporary
international order.
If a comparative constitutional law perspective sheds light on the predicament of

contemporary international law, this still leaves the question of how a democratic
constitutional order should respond to demands for secession. Should it insulate itself from
secessionist challenges by entrenching an explicit commitment to its territorial integrity,
14
Stephen Tierney, Sovereignty and Crimea: How Referendum Democracy Complicates Constituent Power in
Multinational Societies, 16 GERMAN L.J. 523, 524 (2015).
15
Id. at 527.
putting it beyond the reach of radical political aspirations? Or, should it leave the question
of secession open, or at least not expressly prohibited? While not offering an answer to
these, Yaniv Roznai and Silvia Suteu’s article offers a detailed map of Ukraine’s
constitutional amendment procedures and its territorial organization, critiquing the
constitution’s territorial integrity-protecting eternity clause, both from a conceptual
16
viewpoint as well as a practical one.
Roznai and Suteu recognize that eternity clauses may serve valuable, if contradictory,
purposes by spurring democratic deliberation, immemorializing the most prized ideals of a
particular polity, or discouraging strategic behavior of disgruntled minorities. Nonetheless,
they maintain that eternity clauses are inadequate means to fend off democratic
challenges posed by sub-state independence referendums. Accepting Tierney’s view of
sub-state constitutional referendums as democratically legitimate, Roznai and Suteu also
reject standard republican arguments that territorial integrity is inextricably linked with the
17
very idea of popular self-government. In fact, they argue that there is no conceptual link
between changing the territorial scope of a state and the perpetuity of its people. Even
though eternity clauses often serve to protect vulnerable minorities against majoritarian
abuse, that argument is especially problematic in contexts where the identification of a
group as a “majority” or a “minority” is the very issue in a constitutional dispute.
Rather than attempting to reconcile eternity clauses with republican constitutional theory,
Roznai and Suteu argue that the obsession with constitutional “firewalling” of territorial
integrity has its roots in the domain of political symbolism, one that portrays “the people”
not simply as a (necessary) fiction of modern constitutional law, but rather as a true
political body. From this perspective, change in the territorial scope of a polity amounts to
political self-mutilation. Finally, in addition to a lack of meaningful preservation of
Ukraine’s territorial integrity, the eternity clauses of its constitution may unproductively
restrict legitimate peace-making settlements, thus prolonging the conflict.
D. Who Are “The People,” and What Is Their Territory? The Contribution of Normative
Theory
Having offered a means to understand the democratic and quasi-democratic demands of

sub-state peoples for independence or territorial autonomy, neither Tierney nor Roznai
and Suteu anchor their arguments in an explicitly normative understanding of self-
determination, popular sovereignty, or democratic legitimacy. For a more systematic
exploration of the assumptions behind Tierney’s intuition that “direct democracy” has
“moral force,” or Roznai and Suteu’s general openness towards territorial re-compositions,
16
Yaniv Roznai and Silvia Suteu, The Eternal Territory? The Crimean Crisis and Ukraine’s Territorial Integrity as an
Unamendable Constitutional Principle, 16 GERMAN L.J. 542 (2015).
17
For the most powerful contemporary argument, see PHILIP PETTIT, ON THE PEOPLE’S TERMS 302 (2012).
we need to cross the disciplinary fence-line once again and inquire into the meaning of
peoplehood and self-determination from the perspective of normative political theory—
the closest disciplinary neighbor to both international and comparative constitutional law.
In the first of the two contributions that thematize the crisis in Ukraine from that
perspective, Amandine Catala addresses the central normative questions: Who is “the
people,” and what is it morally entitled to? These questions were alluded to in both
Tierney’s and Roznai and Suteu’s arguments but were excluded from Roth’s and
18
Vidmar’s. Catala’s argument is two-fold: On the one hand, it positions itself within
normative theories of secession and territorial rights, offering an improved version of the
choice theory of secession. For her, “the people” entitled to self-determination, emerges
from a “sustained relation of social and political cooperation, bringing about common
19
social and political practices and institutions.” Its right to a particular segment of territory
20
arises from “long occupancy. . . through which the group exercise[d] self-determination.”
On the other, in judging whether the population of Crimea has been marked by a “relation
of peoplehood,” qualifying it as “the people” for the purposes of territorial self-
determination, Catala nonetheless rejects Crimea’s right to join Russia. The reason has
nothing to do with the moral status of Ukraine’s territorial integrity, but rather with the
procedural illegitimacy of the Crimean referendum, “[T]he problem with the Crimean
21
referendum is now where it took place,” says Catala, “but how it took place.”
Staying within the field of normative political theory, Ayelet Banai’s article argues in favor
of another two-pronged theory of territorial self-determination, applicable to the conflict
22
over the secession and the annexation of Crimea. Like Oklopcic later in the volume, Banai
rejects functionalist or statist justifications of territorial rights, which cannot answer which
land rightfully belongs to which people. She equally rejects normative arguments in favor
of a liberal-nationalist version of self-determination, while admitting that accommodating
nationalist territorial demands may be justified as a matter of political prudence. Similar to
Catala, Banai argues that “the people”—who bear the right to self-determination—must
be a politically viable, large group “comprised of individuals that have a shared sense of
23
affiliation to that group.” Those affiliations do not arise from ethnic or cultural belonging,
18
Amandine Catala, Secession and Annexation: The Case of Crimea, 16 GERMAN L.J. 581 (2015).
19
Id. at 596.
20
Id. at 597.
21
Id. at 602. For a similar argument, see Steven Wheatley, Modelling Democratic Secession in International Law,
in NATIONALISM AND GLOBALISATION: NEW SETTINGS, NEW CHALLENGES (2015).
22
Ayelet Banai, Territorial Conflict and Territorial Rights: The Crimean Question Reconsidered, 16 GERMAN L.J. 608
(2015).
23
Id. at 621.
24
but rather from the members’ commitment to a “joint political project.” While Catala
grounds the territorial right of a people in its long occupancy of a certain area, Banai
remains suspicious of occupancy providing a useful criterion for drawing the boundaries of
new self-determining units. Instead, she embraces the reasoning behind the functionalist
approach to territorial rights and accepts that the regional identity of many Crimean
residents, coupled with the “long and distinct legal-political history of Crimea”, establishes
its population as “the people” and the region as the object of its territorial right. Though
she does not reject the referendum in Crimea as procedurally illegitimate like Catala, Banai
accepts that the Crimean people’s right to self-determination, in the form of territorial
autonomy, could, in principle, be equally satisfied within either Ukraine or Russia.
Both contributions have implications for legal reform, but Banai and Catala, like Tierney,
stop short of offering concrete prescriptions. Banai is pessimistic, noticing that prospects
25
for applying her normative arguments are “not bright.” Catala rejects the prescriptive
role of normative theory in driving international legal reform, even though she disagrees
with Allen Buchanan’s famous methodological criteria for judging the plausibility of a
26
theoretical framework of secession. While the “complex specificity” of each secessionist
case argues against institutional and normative reform of international law, Catala,
perhaps ironically, sees the current neutrality of international law towards secession as an
opportunity for international actors to approach the ideals of normative theory while
27
staying mindful of the context of each particular case.
E. The Conflict in Ukraine Between Normative Reform and Conceptual Revision:

Negotiating Disciplinary Fault-Lines
This brings us to the final thematic section in this special issue. In approaching the crisis in
Ukraine from the perspectives of international law, constitutional law and theory, and
normative political theory, all stopped short of calling for institutional reform or the radical
refashioning of the vocabularies used by these disciplines. In contrast, the final set of
contributions explicitly propose a bolder reform (MacLaren), the re-imagination of
constitutional theory and its role in early-conflict constitution making (Oklopcic), and
finally, a new theoretical defense of the role of international actors in domestic state- and
constitution-making (Arato).
Agreeing with Tierney that “claims are not handled internationally according to clear rules
and in a consistent fashion,” Malcolm MacLaren’s contribution takes up the challenge of
24
Id.
25
Id. at 630.
26
Allen Buchanan, Theories of Secession, 26 PHIL. & PUB. AFF. 30 (1997).
27
Catala, supra note 18.
28
normative approaches to secessionism. Unlike choice theorists of secession who often
refrain from advising bold action, MacLaren makes an explicit case for re-orienting the
concept of self-determination in international law towards what he calls democratic
secessionism, which rejects reification of states and grounds their value in the interests of
29
individuals. Like Catala, he confronts Buchanan’s criteria for the institutional credibility of
the theoretical framework for secession. From it, MacLaren draws more radical
conclusions: First, he deflates anxieties about a more relaxed approach to secession,
arguing that the problems that accompany boundary drawing in ethnically-mixed areas are
not as ubiquitous as they may seem at first. Like Banai, he accepts that in many cases the
people may derive their boundaries from a previous political unit. Unlike Banai, however,
MacLaren openly accepts the possibility of further territorial fragmentation, arguing that
existing mechanisms—such as the cascading referendums in the creation of the Canton of
Jura from the Canton of Berne in Switzerland in 1974—can provide satisfactory solutions to
that problem. Finally, he explicitly rejects the trope of the “slippery slope” that, implicitly
or explicitly, haunts both normative and doctrinal debates about secession and self-
determination. Though democratic secessionism is not a “panacea,” these fears should not
be “pandered to,” says MacLaren, who argues that most political instabilities arise from
acts of secession and can be mitigated by post-secession political and economic
arrangements entered into between the new and the old, rump state.
In his article, Zoran Oklopcic re-imagines constitutional solutions for the crisis in Ukraine by
first tackling the disciplinary division of labor among constitutional theory, international
30
jurisprudence, and normative political theory. For him, the crisis in Ukraine is a
manifestation of the paradox of constitutionalism—already noted by a number of other
contributors to this volume—whereby “the people” derives its identity from the extant
constitutional order, but is nonetheless imagined as a sovereign political body, authorized
unconstrained by any prior legal norms. For Oklopcic, a direct critical engagement with
international jurisprudence and normative theory not only holds the key for the dissolution
of this paradox, but also provides the necessary building blocks through which
constitutional theory can hope to offer a distinct disciplinary contribution towards
resolving the crisis in Ukraine—beyond the vocabulary of self-determination and territorial
rights offered either by normative political theory or international law.
Building on the normative value of increased aggregate satisfaction of individual

constituent attachments that lies suppressed behind theories of territorial rights on the
28
See Malcolm Maclaren, “Trust the People”? Democratic Secessionism and Contemporary Practice, 16 GERMAN
L.J. 631, 633 (2015).
29
See generally, id.
30
Zoran Oklopcic, The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights
and Constitutional Paradoxes, 16 GERMAN L.J. 658 (2015).
one hand, and what is for him a credible empirical claim behind Roth’s “bounded
pluralism” on the other, Oklopcic sketches an account of early-conflict constitution making
that abandons the vocabulary of peoplehood. Like Tierney, he acknowledges a deeper
democratic spirit in the Secession Reference and, like Arato, postulates a parallel
constitutional duty of Ukraine to negotiate its federalization in good faith. However, he
also argues that the vocabulary of popular sovereignty obfuscates the inescapable role of
external constituent powers in the foundation of the constitutional orders of weaker,
conflict-ridden polities. He concludes by calling on constitutional theory to theorize early-
conflict constitution-making process in a way that would explicitly recognize the external
constitutive role of powerful states. For Oklopcic, that process, structured and mediated by
the normative ideal of an aggregate increase in the satisfaction of individual constituent
attachments, remains concealed within the vocabulary of a corporate people and its right
to self-determination. Unlike the cascading reconfiguration of territorial boundaries,
Oklopcic suggests that such an externally influenced constituent process should, in liminal
cases, include the implementation of what he calls recursive territorial pluralism.
Finally, Andrew Arato’s article confronts the historical track record of external
constitutional involvement in state—and constitution—making with the normative
imperatives of international legal order and recent developments in the law of self-
31
determination. While Oklopcic portrays the role of external actors as close to inevitable—
and thus meriting constitutional theoretical engagement—Arato defends the
“international role” in post-conflict constitution making on prudential and normative
grounds. Unlike Roth, whose interpretation of the telos of international order prevents him
from reimagining a more robust constituent role for powerful external actors, Arato
embraces the qualified legitimacy of external constituent intervention, grounding it in the
overarching commitments of the UN Charter to safeguard international peace and security.
In doing so, the legitimate international role emerges as the reconciliation between
“constitutional autochthony” and “sovereign equality.”
Arato’s articulation of a legitimate international role in domestic constituent processes

rests on a crucial distinction between the first and second stage in a two-step constituent
process. The first concerns the questions of state re-making, while the second deals with
constitution-making, more narrowly understood as the creation of governing institutions
within a polity whose existential parameters have been agreed upon. Although Arato does
not deny the existence of a necessary overlap between the two stages, he insists that the
role of external actors should in principle be restricted to the first stage, while constitution-
making ought to remain the predominant domain of domestic constitutional actors.
31
Andrew Arato, International Role in State-Making in Ukraine: The Promise of a Two-Stage Constituent Process,
16 GERMAN L.J. 691 (2015).
Building on his previous work on Iraq and the lessons of its constituent process, Arato’s
message for both external and internal constitution-makers in Ukraine is that of inclusion,
participation, impartiality, and responsiveness. International constituent involvement—
together with final constitutional settlement—will be more normatively and sociologically
legitimate if it includes the plurality of interested parties—including the representatives of
both the Ukrainian government and pro-Russian rebels—and if responds favorably to local
demands for self-government. While Arato embraces the remedial account of self-
determination —critiqued from radically different views by Roth, Catala, Banai, and
MacLaren—which would prevent the pro-Russian rebels to secede, he, like Tierney and
Oklopcic, believes that the rebels’ demands to transform Ukraine into a federal-like state
should be accommodated.
F. Obscurity, Paradox, Stalemate: The Crisis in Ukraine and the Future of Interdisciplinary
Encounters
Who counts as “the people”? What is the meaning of its self-determination? How should
we interpret the devices used to detect its will? To what extent can, and should, “the
people” be shackled by the provisions of an existing constitution? The conflict in Ukraine is
the most recent in a series of political conflicts with a territorial component and continues
to raise endemic theoretical, doctrinal, practical, and moral questions. Instead of simply
trying to answer them, however, this issue of the GLJ has seized an opportunity to ask
whether any of these venerable disciplinary obsessions continue to matter as we think
about constructive ways to respond—and perhaps even resolve—the conflict in Ukraine.
Finalized at a moment when the fragile hope for a comprehensive peaceful settlement—
ushered by the Minsk II agreement—remains alive, this issue also seeks to contribute to
ongoing conversations about the salience, credibility, usefulness, perverse effects, and the
internal coherence of these established disciplines.
At the same time, this volume allows space for a rarer inter-disciplinary encounter among
neighboring disciplines that, despite sharing a mutual vocabulary of peoplehood, self-
determination and sovereignty, haven’t systematically reflected on the political, ethical,
prudential, professional, and conceptual assumptions that have led them to—with some
exceptions—vigorously police their respective disciplinary boundaries. In doing so, this
special issue calls to further relax these boundaries towards the ongoing self-reflection
about professional identities, political commitments, and prudential anxieties that make
their concrete configuration possible.
More specifically, such future encounters would benefit from confronting the issues that
resonate throughout this issue, and which will continue to demand further elaboration. For
example, the question that confronts doctrinal international lawyers concerns the cost of
separating doctrinal understanding of self-determination from its grassroots experience;
the experience which stubbornly understands self-determination as a matter of respect for
authentic political will, not simply as a placeholder for other moral or political imperatives.
The famous adage by Ivor Jennings, invoked on innumerous occasions, including in this
special issue, should be understood in that light. Instead of viewing his claim that self-
determination is “ridiculous because the people cannot decide until somebody decides
who are the people” as a gotcha moment of—and for—international lawyers, we ought to
view it as a symptom of enduring anxieties about the professionals’ role in shaping modern
32
political imaginary. Self-determination is only ridiculous—from the legal point of view—
because someone, in or out of the profession, actually continues to think that “the people”
can ever be “self-determining” in a way not prescribed by the norms of international law.
Continuing to demask this alleged ridiculousness is to admit that such views somehow still
matter. In other words, apart from its role in demasking the circularity of the vocabulary of
peoplehood, Jennings’ ubiquitous quip should also be seen as the symptom of a
profession’s lingering ambivalence towards how those on the ground have come to
understand what it is they are fighting for, and about what international law ought to do
about it.
By the same token, critical international lawyers need to gauge whether they can move
beyond the mere ethos of self-awareness in a way that would incorporate their legitimate
anxieties in a more nuanced, but nonetheless general, and institutionally prescriptive
33
fashion. By offering contextual critique of doctrinal arguments and understanding self-
determination as multifaceted legal concept, critical lawyers also confront enduring
questions about the political and professional price of their commitment to a heightened
degree of self- and other-awareness. If such legal scholarship remains similar to other
forms of interdisciplinary engagement, what will continue irritating the critical project is
the question of the concrete content of its contribution beyond its heightened self-
awareness.
The interdisciplinary encounter hazarded in the context of the crisis in Ukraine will equally
challenge dominant approaches to collective political identity in constitutional law and
theory. As the contributions in this issue demonstrate, both doctrinal and critical scholars
challenge constitutional theorists to better appreciate larger constituent frames that make
the idea of “the people”—as the bearer of sovereignty and constituent power—possible in
the first place. This idea is not only a centerpiece of constitutional imagination that
reconciles the ideological imperative of political integration with the utopian imperative of
34
political emancipation , but is also an implication of a bigger picture. It exists as a
politically relevant detail, made possible by a larger constituent frame, which justifies not
only our present-day international legal order, but which also, consequently, structures the
32
IVOR JENNINGS, AN APPROACH TO SELF-GOVERNMENT 56 (1956).
33
For an influential and decisive rejection of this possibility, considering it “poisoned chalice,” see MARTTI
KOSKENNIEMI, FROM APOLOGY TO UTOPIA 603 (2006).
34
See, Martin Loughlin, Constitutional Imagination 78 MOD. L. REV. 1, 12 (2015).
35
limits of the conceivability of sovereign peoplehood. The question confronting
theoretically-minded constitutional lawyers, then, is whether they can—and if they can,
should they—construct their arguments in a vacuum, without gesturing towards deeper,
but nonetheless concrete normative or juridical assumptions, more fully articulated by
36
other disciplines.
Finally, the crisis in Ukraine challenges normative political theory not only with obvious
questions—for example, how realistic its prescriptions should be—but also by pointing to
neglected registers of struggle that give new meanings to territorial conflicts. The conflict
over territory—amply demonstrated in the context of Ukraine—is not just a matter of
demands for national self-determination, but also a matter of geopolitical jockeying,
transcontinental economic competition, and contingent insults to—not primarily national
or nationalistic—political memory. To code radical political demands in terms of
aspirations towards individual and collective “self-government” may not only be grossly
inaccurate, but may also prevent new and productive ways of addressing the conflict.
Calls for continued conversation among disciplines that share important parts of their
respective vocabularies will always be confronted with suspicions about the productivity
and the costs of such engagement. However, given the plethora of answers to the central
questions posed above, the price of relaxing disciplinary boundaries need not be steep, as
even a cursory glance at the state of affairs in those disciplines readily confirms. In
international law, the meaning of self-determination after decolonization remains marred
by obscurity and fuzziness. Across the disciplinary boundary, much of constitutional law
and theory simply accepts that the foundations of its discipline rest on a paradox, where a
pre-political sovereign people, unshackled by prior norms, creates a constitutional order,
even though its collective identity actually derives from it. In normative political theory,
lively debates —some of which are showcased in this volume— have ultimately resulted in
a stalemate among different theories of secession territorial rights.
Obscurity, paradox, stalemate: these three words describe how international law,
constitutional law, and normative theory currently respond to the problems posed by
endemic demands for self-determination and popular sovereignty in struggles over
territory. Though this characterization cannot serve as an argument for intra-disciplinary
conversations to end, it is a sufficient argument for inter-disciplinary conversations to
continue. In the light of the monumental existential stakes that surround claims of
peoplehood, such as in Ukraine, there simply is not enough useful, actionable, intra-
35
See CHRISTIAN REUS-SMIT, THE MORAL PURPOSE OF THE STATE: CULTURE, SOCIAL IDENTITY, AND INSTITUTIONAL RATIONALITY IN
INTERNATIONAL RELATIONS 6 (1999).
36
For a rare explicit consideration of the object of constitutional theory in literature, see STEPHEN TIERNEY,
CONSTITUTIONAL REFERENDUMS 2–3 (2012).
disciplinary heritage worth protecting from the potentially corrosive effects of productive
inter-disciplinary engagement.
The Annexation of Crimea and the Boundaries of the Will of the

People
By Jure Vidmar*
Abstract
The secession of Crimea and—more broadly—the conflict in Ukraine reopened questions

concerning the limits of a democratic expression of the will of the people and the use of
force in order to procure annexation of a territory belonging to another State. This article
seeks to clarify the law governing the change of the legal status of a territory through
secession and merger with another state. It argues not only that the right of self-
determination does not grant an entitlement to alter the legal status of a territory, but also
that general international law does not prohibit such an alteration. The rules of
international law favor the stability of the existing international borders and thus the
territorial status quo, but this does not mean that a unilateral attempt at altering an
existing territorial arrangement automatically constitutes an internationally wrongful act.
Any change of the legal status of a territory becomes illegal, however, upon an outside use
of force. Such an illegality cannot be “cured” by a democratically expressed will of the
people.
A. Introduction
1
On 16 March 2014, Crimea held a referendum on its future legal status as a territory.
Reports indicated that the choice to join Russia was supported by an overwhelming ninety-
2
five-point-five percent of all votes cast, with a turnout percentage of eighty-three percent.
A day earlier, Russia vetoed a draft Security Council Resolution that sought to declare the
referendum as “having no legal validity” and to urge the international community not to
3
recognize its results. Thirteen members of the Security Council, with China abstaining,
* Professor of Public International Law, Maastricht University, The Netherlands; Extraordinary Lecturer, Faculty of
Law, University of Pretoria, South Africa; Research Fellow, St John’s College, University of Oxford, United
Kingdom.
1
See Crimea Referendum: Voters ‘Back Russia Union,’ BBC NEWS (Mar. 16, 2014), http://www.bbc.com/news
/world-europe-26606097.
2
Id.
3
See UN Security Council Resolution on Ukraine (C-Span broadcast Mar. 15, 2014), available at http://www.c-
span.org/video/?318324-1/un-security-council-meeting-ukraine.
4
otherwise supported the draft resolution. On 17 March 2014, the Crimean Parliament
5
declared independence and applied to join Russia. Russia formally annexed Crimea on 21
6
March 2014. The international legal validity of this act remains contested. On 27 March
2014, the United Nations (UN) General Assembly adopted Resolution 68/262, which called
on all states “to desist and refrain from actions aimed at the partial or total disruption of
the national unity and territorial integrity of Ukraine, including any attempts to modify
7
Ukraine’s borders through the threat or use of force or other unlawful means.” One
hundred states voted in favor of adopting the Resolution, but notably, eleven States voted
8
against, and as many as fifty-eight States abstained. While widespread, the condemnation
of Russia’s annexation of Crimea was far from being universal.
The recent episode with Crimea and Ukraine, more broadly, reopened questions on the
limits of a democratic expression of the will of the people, and the use of force in order to
procure annexation of a territory belonging to another state. Although most claims for self-
determination arise in the context of an attempt for independence, the right can be
9
consummated in the form of integration with another state. Self-determination is not an
absolute right and would normally not result in a change of international borders. At the
same time, secession is not necessarily prohibited under international law. When are
claims for independence or integration with another state made within the zone of
international legal neutrality? When are such claims illegal internationally? What is the
role, if any, of a democratic expression of the will of the people? This paper thus seeks to
clarify the law governing the change of the legal status of a territory, secession, and
merger with another state. It argues that the rules of international law favor the stability of
the existing international borders and thus the territorial status quo, but this does not
mean that a unilateral attempt at altering an existing territorial arrangement automatically
constitutes an internationally wrongful act. But any change of the legal status of a territory
becomes illegal upon an outside use of force. The referendum and the declaration of
independence in Crimea, therefore, neither create territorial illegality, nor territorial
entitlement for Russia. Territorial illegality is rather created by Russia’s military
4
Id.
5
See Crimean Parliament Formally Applies to Join Russia, BBC NEWS, Mar. 17 2014, http://www
.bbc.com/news/world-europe-26609667.
6
See Ukraine: Putin Signs Crimea Annexation, BBC NEWS (Mar. 21, 2014), http://www.bbc.co.uk/news/world-
europe-26686949.
7
G.A. Res. 68/262, ¶ 2, U.N. Doc. A/RES/68/26 (Mar. 27, 2014).
8
Id.
9
See G.A. Res. 25/2625 (XXV), ¶ 121, U.N. Doc. A/RES/25/2625 (Oct. 24, 1970) (stating principle V provides that
the right of self-determination can be implemented by establishing 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”).
2015 Boundaries of the Will of the People 367
involvement. Such an illegality cannot be “cured” by a democratically expressed will of the

people.
B. Self-Determination Versus Territorial Integrity
Claims for independence generally mean a clash between the right of self-determination
and the principle of territorial integrity of states. Those claiming independence speak of
self-determination as if it were an absolute right of peoples, while governments that try to
counter secession see territorial integrity as an absolute right of states. Neither right is
absolute. The principle of territorial integrity is elaborated in the Declaration on Principles
of International Law:
Nothing in the foregoing paragraphs [concerning the

right of self-determination] shall be construed as
authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent
States conducting themselves in compliance with the
principle of equal rights and self-determination of
peoples as described above and thus possessed of a
government representing the whole people belonging
to the territory without distinction as to race, creed or
10
colour [sic].
While secession is not authorized or encouraged, the wording of the principle does not
11
imply it would be illegal or even prohibited. As international law is neutral on the
10
Id.
11
The argument in favor of international legal neutrality was advanced in a number of pleadings before the ICJ in
the Kosovo Advisory Opinion. Consider the following illustrative arguments: “A declaration of independence . . .
constitutes a purely internal legal act and not an international legal act.” See Accordance with International Law
of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Public
sitting on the advisory opinion, I.C.J. CR 2009/28, 27 para. 31 (Dec. 4, 2009) (argument of Jean d’Aspremont on
behalf of Burundi) (emphasis in original); “A declaration [of independence] issued by persons within a State is a
collection of words writ in water . . . [W]hat matters is what is done subsequently, especially the reaction of the
international community.” See Accordance with International Law of the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Government of Kosovo, Public sitting on the advisory opinion, I.C.J. CR
2009/32, 47 para. 6 (Dec. 10, 2009) (argument of James Crawford on behalf of the United Kingdom); “State
practice confirms that the adoption of a declaration of independence, or similar legal acts, frequently occurs
during the creation of a new State. As such, this very act—the act of declaring independence—is legally neutral.”
See Accordance with International Law of the Unilateral Declaration of Independence by the Provisional
Institutions of Self-Government of Kosovo, Public sitting on the advisory opinion, I.C.J. CR 2009/29, 52 para. 11
(Dec. 7, 2009) (argument of Andreja Metelko-Zgombic on behalf of Croatia). A different argument was, however
made on behalf of the United States, for example, which acknowledged that declarations of independence do not
entirely fall outside of the purview of international law: “We do not deny that international law may regulate
particular declarations of independence, if they are conjoined with illegal uses of force or violate other
question of unilateral secession, unilateral declaration of independence is not per se illegal,

12
only its success is very unlikely. In the absence of a positive entitlement to independence,
the zone of international legal neutrality effectively preserves territorial status quo. This is
why a unilateral declaration of independence usually remains ineffective; but ineffective is
not the same as illegal.
13
Secession is thus a process of overcoming a competing claim to territorial integrity. The
most effective and unambiguous mode of secession is by consent of the parent state and
14
thus a waiver of its claim to territorial integrity. This is what happened recently with the
15
United Kingdom and Scotland. The United Kingdom agreed to respect the outcome of the
referendum on independence, no matter the outcome of the vote. In the end, there was a
16
“no vote,” but it remains significant that the most important potentially state-creative
element in the episode was politically-realized consent. Such an acceptance by a central
government is relatively rare in international practice. Further, states are never under an
obligation to accept independence of one of its units.
I. How About Remedial Secession?
The Supreme Court of Canada reaffirmed, in Reference re: Secession of Quebec, the fact
that self-determination does not grant a right to secession, but the Court also speculated
that secession might be an entitlement where it is demanded by oppressed peoples:
The recognized sources of international law establish

that the right to self-determination of a people is
normally fulfilled through internal self-determination—
peremptory norms, such as the prohibition against apartheid.” See Accordance with International Law of the
Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Public
sitting on the advisory opinion, I.C.J. CR 2009/30, 30 para. 20 (Dec. 8, 2009) (argument of Harold Hongju Koh on
behalf of the United States).
12
See, e.g., JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 390 (2d ed. 2006).
13
See Jure Vidmar, Territorial Integrity and the Law of Statehood, 44 GEO. WASH. INT’L L. REV. 101, 109 (2012).
14
Id. at 114.
15
See Agreement between the United Kingdom Government and the Scottish Government on a referendum on
independence for Scotland (Oct. 15, 2012), http://www.scotland.gov.uk/About/Government/concordats
/Referendum-on-independence; see also Stephen Tierney, Legal Issues Surrounding the Referendum on
Independence for Scotland, 9 EUR. CON. L. REV. 359, 362–63 (2013) (affirming that the agreement between the
governments of Scotland and the UK “contrasts sharply with so many States where the issue of secessionist or
sovereignist referendums has been the source of such deep and protracted disagreement”).
16
See Scottish Referendum: Scotland Votes ‘No’ to Independence, BBC NEWS (Sept. 19, 2014), http://www
.bbc.com/news/uk-scotland-29270441.
a people’s pursuit of its political, economic, social and

cultural development within a framework of an existing
state. 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
17
defined circumstances.
18
Some writers have also advanced remedial secession. Oppression effectively looks like
colonialism. Common sense then asks us why a people would have the right to
independence only if their oppressor is far away, but not if the oppressor is right next to
them. As Buchanan notes:
If the state persists in serious injustices toward a group,

and the group’s forming its own independent political
unit is a remedy of last resort for these injustices, then
the group ought to be acknowledged by the
international community to have the claim-right to
repudiate the authority of the state and to attempt to
19
establish its own independent political unit.
Yet, international law understands colonialism in the so-called salt-water definition—that

20
is, as European possessions outside of Europe. Such an understanding of colonialism also
follows from the Declaration on the Granting of Independence to Colonial Countries and
Peoples, which provides that “[t]he subjection of peoples to alien subjugation, domination
and exploitation constitutes a denial of fundamental human rights, is contrary to the
Charter of the United Nations and is an impediment to the promotion of world peace and
21
co-operation,” but then also specifies that “[a]ny attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of a country is incompatible
17
Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, para. 126 (Can.).
18
See Antonello Tancredi, A Normative ‘Due Process’ in the Creation of States Through Secession, in SECESSION:
INTERNATIONAL LAW PERSPECTIVES 171, 176 (Marcelo G. Kohen ed., 2006) (providing a thorough account on the
academic support for “remedial secession”).
19
ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW 335
(2004).
20
See id. at 339–40 (providing a definition of “salt water colonialism,” which refers to the understanding of
colonialism in the sense of European overseas possessions, but does not cover oppression within the
metropolitan territory of a State).
21
See G.A. Res. 1514 (XV), ¶ 1, U.N. Doc. A/RES/1514 (Dec. 14, 1960).
22
with the purposes and principles of the Charter of the United Nations.” The Declaration
23
also makes specific references to non-self-governing and trust territories, which clarifies
that the process of decolonization does not relate to the metropolitan territory of a state.
The principle of territorial integrity protects the metropolitan territory of the State itself,
but not the overseas possessions. It is important to note in this regard that the decision to
end colonialism was political and the process of decolonization then created a number of
new States.
As far as internal oppression is concerned, the Supreme Court of Canada indeed said that
the right to independence perhaps only arises where secession would be the last resort for
ending oppression, or where there is no meaningful arrangement in place for internal self-
24
determination. The Canadian Supreme Court phrased this cautiously with a number of
caveats, and it was an obiter dictum in any case. As the Court said, Quebecers in Canada
are not oppressed in any case, so the remedial right to secession did not need to be
25
examined for the merits of the case.
If there was such a right, it would need to exist under customary international law, for
which we need uniform state practice and opinio juris. There may be some opinio juris,
26
which is not uniform, and virtually no state practice. Perhaps the 1971–74 events in
27
Bangladesh could be taken as such, but even that is problematic, as Bangladesh did not
28
become a State undoubtedly before Pakistan gave its consent in 1974. It would be
plausible to argue that secession ended oppression if Kosovo declared independence in
29
1999, but it declared independence in 2008 when oppression had been over for nine
30
years.
22
Id. ¶ 6.
23
Id. ¶ 5.
24
2 S.C.R. 217, at para. 126.
25
Id. at para. 135.
26
See Jure Vidmar, International Legal Responses to Kosovo’s Declaration of Independence, 42 VAND. J. TRANSNAT’L
L. 779, 831–34 (2009) (giving a thorough analysis of state practice opposing remedial secession).
27
Bangladesh (formerly known as East Pakistan) was a geographically separate entity that declared independence
from Pakistan in 1971. In the circumstances of brutal oppression over the Bengali people, India intervened
militarily and drove Pakistani forces out of East Pakistan (Bangladesh). It was not until 1974, when Pakistan itself
granted recognition, that Bangladesh became universally recognized and a member of the UN. See CRAWFORD,
supra note 12, at 393.
28
Id.
29
In 1999, Kosovo was placed under the regime of international territorial administration by Security Council
Resolution 1244, adopted under Chapter VII of the UN Charter. The Resolution was adopted in response to the
years of violence, severe oppression, and armed conflict, which led to NATO intervention without UN Security
Council’s authorization. From 1999 until its independence in 2008, Kosovo was thus governed in separation from
In Crimea, an attempt at invoking remedial arguments was made, inter alia, in the speech
of President Putin on 18 March 2014:
[W]e hoped that Russian citizens and Russian speakers

in Ukraine, especially its southeast and Crimea, would
live in a friendly, democratic and civilised [sic] state
that would protect their rights in line with the norms of
international law. . . . [T]he new so-called authorities
[of Ukraine] began by introducing a draft law to revise
the language policy, which was a direct infringement on
the rights of ethnic minorities. . . . [W]e can all clearly
see the intentions of these ideological heirs of Bandera,
Hitler’s accomplice during World War II. It is also
obvious that there is no legitimate executive authority
in Ukraine now, nobody to talk to. Many government
agencies have been taken over by the impostors, but
they do not have any control in the country, while they
themselves . . . are often controlled by radicals. . . .
[T]hose who opposed the coup were immediately
threatened with repression. Naturally, the first in line
here was Crimea, the Russian-speaking Crimea. In view
of this, the residents of Crimea and Sevastopol turned
to Russia for help in defending their rights and lives . . .
. [N]aturally we could not leave this plea unheeded; we
could not abandon Crimea and its residents in distress.
31
This would have been betrayal on our part.
While certain policies of the Ukrainian authorities were certainly questionable, the
32
situation was not comparable to Bangladesh where genocide was possibly at stake.
Remedial secession is also conceptualized as the last resort for ending systematic
33
oppression. Even if the doctrine of remedial secession were accepted in international
Serbia but legally it nevertheless remained Serbia’s province. Independence was declared in 2008, when Serbia no
longer exercised effective control over Kosovo, and its oppressive policies had been over for nine years. See
generally Vidmar, supra note 26.
30
See Kosovo Declaration of Independence (Feb. 17, 2008), http://www.assembly-kosova.org/?cid=2,128,1635.
31
See Address by President of the Russian Federation, PRESIDENT OF RUSSIA (Mar. 18, 2014), http://eng.kremlin
.ru/news/6889.
32
CRAWFORD, supra note 12, at 393.
33
2 S.C.R. 217, at para. 126.
law, in Crimea, neither the threshold of oppression nor the definition of a remedy of last
resort had been met. Furthermore, as demonstrated in this section, secession is never an
entitlement in international law, not even where legitimized on remedial grounds. It is
true, however, that a declaration of independence resulting from severe oppression may
make international recognition more forthcoming. Regarding Crimea, this means that even
if ethnic Russians were oppressed by Ukraine, this would not lead to an entitlement to
secession, although foreign states could have been more willing to recognize and thus
accept the alteration of the territorial status had severe oppression been at stake. The
question arises as to whether Crimea’s annexation by Russia could be “legalized” through
international recognition.
II. Constitutive Recognition

34
Contemporary writers see recognition as a declaratory legal act, not constitutive. The
political reality of recognition, however, is not as straightforward as textbooks on
international law may suggest. Under some circumstances, widespread recognition could
have state-creating effects. The Supreme Court of Canada in the Quebec case
acknowledged this:
The ultimate success of . . . a [unilateral] secession

would be dependent on recognition by the
international community, which is likely to consider the
legality and legitimacy of secession having regard to,
amongst other facts, the conduct of Quebec and
Canada, in determining whether to grant or withhold
35
recognition.
Indeed, it has been established above that issuing a unilateral declaration of independence
is not per se illegal, but is likely an ineffective act. Such a declaration could become
effective, however, if widely accepted by other states through recognition. Recognition can
thus be either declaratory or constitutive, depending on the circumstances. If Scotland
voted for and declared independence, recognition would surely be merely declaratory. The
central government of the United Kingdom waived its claim to territorial integrity and the
rest of the world would merely acknowledge the new legal situation by granting
recognition.
In other examples, recognition can, however, attempt to create a new legal situation
rather than acknowledge it. Kosovo, for instance, may be an example of the “Quebec
34
See MARTIN DIXON, ROBERT MCCORQUODALE & SARAH WILLIAMS, CASES AND MATERIALS IN INTERNATIONAL LAW 158 (5th
ed. 2011).
35
2 S.C.R. 217, at para. 155.
constitutive formula”: where an attempt at secession is unilateral, widespread recognition

36
can have constitutive effects. As always with constitutive recognition, the question arises:
How many and whose recognitions are necessary? This is the old “constitutive trap.” Are
110 recognitions enough? Is it enough to be recognized by some influential states—such as
the United States, the United Kingdom, France, and Germany—but not by other influential
states—such as China, Russia, Spain, South Africa, and, in general, by very few Latin
37
American, Asian and African states? The dilemma is similar to that of a glass which can be
seen as being either half-empty or half-full. What is the objective legal status of Kosovo?
Foremost, statehood is not an objective physical fact. Statehood is legal status of a

38
territory, and legal status can sometimes be ambiguous or contested. Historically, many
39
legal theorists analogized statehood with objects and even people. Some writers today
40
still insist that states are “born” as natural persons. Arguably, international law issues a
41
birth certificate to “naturally born states” via recognition. In municipal law, the existence
of a natural person does not depend on whether or not a birth certificate was issued. The
42
same ought to hold true in international law and where states are concerned. There is
always only so much one can achieve with metaphors, and it is often counterproductive if
we try to take them too far. Comparing recognition and birth certificate may be appealing,
but how exactly are states born the way children are born? By analogy to municipal law, it
may be possible to compare states to corporations rather than individuals: They are legal
persons, but not natural ones.
Statehood is international legal status; it is not objective physical fact. In some borderline
examples, statehood can be ambiguous. Widespread recognition of a unilateral attempt at
secession can have state-creating effects, although it is not possible to pinpoint precisely
how much recognition would suffice. Furthermore, as doctrine and even state practice
43
confirm, not even granting recognition to a unilateral attempt at secession is illegal.
International law does allow changes of the legal status of a territory without consent of
36
Id.
37
See Who Recognized Kosova as an Independent State, KOSOVO THANKS YOU, http://www.kosovothanksyou.com.
38
Vidmar, supra note 13, at 702.
39
See GEORG JELLINEK, ALLGEMEINE STAATSLEHRE 137 (2d ed. 1905).
40
See STEFAN TALMON, KOLLEKTIVE NICHTANERKENNUNG ILLEGALER STAATEN 222 (2004).
41
Id. at 218–20.
42
Id.
43
2 S.C.R. 217, at para. 126.
44
the parent state. Therefore, the secession of Crimea from Ukraine is illegal merely
because Ukraine did not give its consent. In principle, it would be possible for Crimea to
secede from Ukraine unilaterally had it received virtually universal recognition. An
argument will now be made, however, that other circumstances existed which made this
particular secession illegal and foreign states have the duty to withhold recognition.
C. The Use of Force and the Limits on Neutrality of International Law
This article argues that international law is, in principle, neutral on the question of
unilateral secession and that declaring independence without consent of the parent state
is not an internationally wrongful act. The Crimean Declaration—and very likely also the
referendum—may well have violated Ukrainian Constitution, but this is irrelevant for
45
international law. Under some circumstances, however, such declarations can still be
illegal, albeit not just because they are unilateral.
As was confirmed even in the otherwise very narrow Kosovo Advisory Opinion:
[T]he illegality attached to [some other] declarations of

independence . . . stemmed not from the unilateral
character of these declarations as such, but from the
fact that they were, or would have been, connected
with the unlawful use of force or other egregious
violations of norms of general international law, in
particular those of a peremptory character (jus
46
cogens).
This pronouncement of the ICJ is highly significant. The Court was otherwise heavily
criticized for establishing a formalistic distinction between issuing a declaration of
47
independence and creating a state. Here it affirmed that under some circumstances even
44
See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, 2010 I.C.J. 141, para. 79 (July 22) (recalling that throughout history states commonly emerged
upon declarations of independence which were initially unilateral. Ultimately, the Court concluded: “In no case . .
.does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as
contrary to international law.”).
45
See Christopher Borgen, Can Crimea Secede by Referendum?, OPINIO JURIS (Mar. 6, 2014), http://opiniojuris
.org/2014/03/06/can-crimea-secede-referendum.
46
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, 2010 I.C.J. 141, para. 81 (July 22).
47
See, e.g., Hurst Hannum, The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused,
24 LEID. J. INT’L L. 155 (2011).
a declaration itself might be illegal where it tries to consolidate a situation created in

violation of jus cogens. This doctrine is largely based on the practice developed with regard
48
to Turkey’s forceful creation of Northern Cyprus, declarations of independence of
49 50
Southern Rhodesia, four South African Homelands, and South Africa’s illegal presence in
51
Namibia. There are also some older potentially relevant examples, such as Japan’s
52
creation of Manchukuo. The unilateral character of declarations of independence did not
create the territorial illegality in these circumstances (for example, without approval of
parent states); it was created by the fact that these entities intended to become states as a
result of illegal use of force or in pursuance of apartheid.
It is true that several resolutions of UN organs called for non-recognition in these

instances, but these resolutions were generally not legally binding. So, for the most part,
the duty of non-recognition did not draw normative force from the Security Council’s
Chapter VII powers. The duty of non-recognition rather applied under general international
law. Given the norms involved, the following doctrine applies: Where declaration of
independence is issued in violation of jus cogens, it is illegal and other states have a duty to
withhold recognition. Articles 40 and 41 of the International Law Commission (ILC) Articles
on State Responsibility have confirmed this doctrine. Article 41(2) provides that “no State
shall recognize as lawful a situation created by a serious breach [of jus cogens] . . . nor
53
render aid or assistance in maintaining that situation.”
Applying this doctrine to Crimea, the general neutrality of international law means that the
people of Crimea are not precluded from holding a referendum, and even declaring
independence and/or willingness to integrate with Russia. International law does not,
however, give them a right to secession from Ukraine and/or integration with Russia. Not
48
See S.C. Res. 541, U.N. Doc. S/RES/541 (Nov. 18, 1983).
49
See G.A. Res. 1747 (XVI), U.N. Doc. A/RES/1747 (XVI) (June 27, 1962); see also S.C. Res. 202, U.N. Doc.
S/RES/202 (May 6, 1965); see also G.A. Res. 2022 (XX), U.N. Doc A/RES/2022 (XX) (Nov. 5, 1965); see also G.A. Res,
2024 (XX), U.N. Doc. A/RES/2024 (XX) (Nov. 11, 1965); see also S.C. Res. 216, U.N. Doc. S/RES/216 (Nov. 12, 1965);
see also S.C. Res. 217, U.N. Doc. S/RES/217 (Nov. 20, 1965); see also S.C. Res. 277, U.N. Doc. S/RES/277 (Mar. 18,
1970).
50
See G.A. Res 2671F, U.N. Doc. A/RES/2671F (Dec. 8, 1970); see also G.A. Res. 2775, U.N. Doc. A/RES/2775 (Nov.
29, 1971); see also G.A. Res. 31/6A, U.N. Doc. A/RES/31/6A (Oct. 26, 1976); see also G.A. Res. 402, U.N. Doc.
A/RES/402 (Dec. 22, 1976); see also G.A. Res. 407, U.N. Doc. A/RES/407 (May 25, 1977); see also G.A. Res. 32/105
N, U.N. Doc. A/RES/32/105N (Dec. 14, 1977); see also G.A. Res. 34/93 G, U.N. Doc. A/RES/34/93 (Dec. 12, 1979);
see also G.A. Res. 37/43, U.N. Doc. A/RES/37/43 (Dec. 3, 1982); see also G.A. Res. 37/69A, U.N. Doc.
A/RES/37/69A (Dec. 9, 1982).
51
See Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16).
52
53
G.A. Res. 56/83, annex, U.N. Doc. A/RES/56/83 (Dec. 12, 2001).
even the democratic and overwhelming will of the people expressed at the referendum
changes this position. International law remains neutral on this issue. In the absence of
widespread international recognition, the Crimean intention would remain ineffective
54
without Russia’s use or threat of force. Even if the actual use of force were still
55
contested, Russian activities constitute at least a threat of force, which is likewise
56
prohibited by Article 2(4) of the UN Charter.
This is where the neutrality of international law on declarations of independence ends. In

the sense of paragraph eighty-one of the Kosovo Advisory Opinion, we are no longer
talking about a unilateral declaration of independence but an attempt at secession in
57
violation of jus cogens. This circumstance triggers Article 41 of the ILC Articles on State
58
Responsibility. All states—including the wrongdoer —are obliged to withhold recognition.
The obligation does not apply because Ukraine’s constitution would not allow secession or
because there is no political approval from Kiev. It applies because Russia created an illegal
territorial situation by use or threat of force. In other words, Russia created a situation
legally comparable to Northern Cyprus, albeit integration rather than independence was
sought in this instance. Hence, unilateral secession is not per se illegal. It becomes illegal
when another state uses force to make a territorial switch effective, be it in the form of
annexation or creation of a puppet state.
Concerning recognition, one might ask why the duty to withhold recognition, as reflected
in Article 41 of the ILC Articles on State Responsibility, is necessary if recognition could not
create a state. Some writers see declaratory recognition as a dogma and then use evasive
language when they need to deny any constitutive effects. One such position is eloquently
advanced by David Raič:
[T]he obligation of non-recognition has a declaratory

character in the sense that States are considered to be
under a legal obligation not to recognize a specific
situation which is already legally non-existent. Thus,
54
See Nico Krisch, Crimea and the Limits of International Law, EJIL TALK! (Mar. 10, 2014), http://www.
ejiltalk.org/crimea-and-the-limits-of-international-law/; see also Aurel Sari, Ukraine Insta-Symposium: When Does
the Breach of a Status of Forces Agreement Amount to an Act of Aggression? The Case of Ukraine and the Black
Sea Fleet SOFA, OPINIO JURIS (Mar. 6, 2014), www.opiniojuris.org/2014/03/06/ukraine-insta-symposium-breach-
status-forces-agreement-amount-act-aggression-case-ukraine-black-sea-fleet-sofa/.
55
Id.
56
U.N. Charter art. 2, para. 4.
57
Advisory Opinion, 2010 I.C.J. Rep. 403, para. 81 (July 22).
58
See G.A. Res. 56/83, annex, art. 41.
the obligation of withholding recognition is not the

cause of the fact that an illegal act does not produce
the intended results, that is, legal rights for the
wrongdoer. Non-recognition merely declares or
confirms that fact and the obligation not to grant
recognition prevents the validation or ‘curing’ of the
59
illegal act or the situation resulting from that act.
How would recognition cure an illegal territorial situation? This is simply a way of saying
that recognition could create a State without actually uttering this international legal
heresy. What would happen if Cyprus recognized Northern Cyprus? The rest of the world
would follow within days and thus “cure” the illegality; that is, the world would create a
State. And what if Ukraine recognized the incorporation of Crimea into Russia? Such an
acceptance would also have some “curing” effects, although this should not have been the
case, as the injured state cannot release another state from its responsibility to comply
60
with peremptory norms. Again, the political reality of recognition would take precedence
over Article 41 of the ILC Articles on State Responsibility.
In sum, unilateral secession is unlikely to be effective, but effectiveness could be procured

through international recognition. A unilateral character does not make secession per se
illegal. Nevertheless, secession is illegal where effectiveness is given to it through use or
threat of force by a foreign state. In such circumstances, other states are under the
obligation to withhold recognition. Namely, widespread recognition of an illegally-changed
legal status could create legal rights for the wrongdoer: either creation of an independent
state or international acceptance of annexation.
D. Democratic Expression of the Will of the People
Thus far, this article has established the circumstances in which a change of the legal status
of a territory can be effective and the role of other states in this process. The article now
turns to the role of the will of the people and the modes of its expression. When annexing
Crimea, Russia invoked democratic legitimacy and the will of the people in favor of the
61
territorial shift. The question thus arises of whether the will of the people can trump
territorial illegality and whether the particular referendum in Crimea met the required
standards to be seen as being legally relevant internationally.
59
DAVID RAIČ, STATEHOOD AND THE LAW OF SELF-DETERMINATION 105 (2002).
60
See G.A. Res. 56/83, annex, art. 26.
61
See Address by President of the Russian Federation, PRESIDENT OF RUSSIA (Mar. 18, 2014), http://eng
.kremlin.ru/news/6889 (arguing that “[a] referendum was held in Crimea on March 16 in full compliance with
democratic procedures and international norms.”).
In the Western Sahara Advisory Opinion, the International Court of Justice (ICJ)
pronounced, “[T]he application of the right of self-determination requires a free and
62
genuine expression of the will of the peoples concerned.” Such an expression is usually
formalized through referendums on the future legal status of a territory. In the aftermath
of the First World War, several referendums on the legal status of European territories
63
took place under the League of Nations auspices. Referendums were also held in the
64
process of decolonization after the Second World War. The post-Cold War period saw the
emergence of a number of new States, and independence referendums were held in the
territories of the Soviet Union, the Socialist Federal Republic of Yugoslavia (SFRY), Eritrea,
65
East Timor, Montenegro, and South Sudan.
66
There are notable absences of independence referendums in Czechoslovakia and
67
Kosovo. As the ICJ remarked in Western Sahara, however, the requirement for
consultation may be dispensed with where the will of the people is obvious and
68
unambiguous. This was the case in some instances of decolonization, where referendums
69
were not held but the will of the people was nevertheless clear. The same cannot be said
for the dissolution of Czechoslovakia. No referendum was held and it was unclear whether
70
separation really was the will of the people, yet the Czech Republic and Slovakia emerged
71
as new States.
62
Western Sahara, Advisory Opinion, 1975 I.C.J. 12, para. 55 (Oct. 16).
63
Henry E. Brady & Cynthia S. Kaplan, Eastern Europe and the Former Soviet Union, in REFERENDUMS AROUND THE
WORLD: THE GROWING USE OF DIRECT DEMOCRACY 175 (David I. Butler & Austin Ranney eds., 1994).
64
Russell A. Miller, Self-Determination in International Law and the Demise of Democracy?, 41 COLUM. J.
TRANSNAT’L L. 601, 612 (2003); see also YVES BEIGBEDER, INTERNATIONAL MONITORING OF PLEBISCITES, REFERENDA AND
NATIONAL ELECTIONS: SELF-DETERMINATION AND TRANSITION TO DEMOCRACY 91 (1994).
65
See JURE VIDMAR, DEMOCRATIC STATEHOOD IN INTERNATIONAL LAW: THE EMERGENCE OF NEW STATES IN POST-COLD WAR
PRACTICE 65–115 (2013).
66
67
VIDMAR, supra note 65, at 190, 196.
68
69
Id.
70
VIDMAR, supra note 65, at 190.
71
Id.
I. The Legal Effects of Independence Referendums
As independence is not an entitlement, holding a referendum is only a necessary, but

insufficient, requirement for independence. Recent practice indeed saw a number of
72
referendums in favor of independence which did not result in creation of a new state.
Under international law, independence referendums are therefore not binding on the
central government. This needs to be qualified with the pronouncement of the Supreme
Court of Canada in the Quebec case. Referring to the principle of democracy entrenched in
Canadian constitutional law, the Court established that, in a democratic State, an
73
expression of the will of the people in favor of independence could not be ignored. An
obligation would be put on both sides to negotiate the future legal status of the
74
independence-seeking territory. The Supreme Court of Canada made it clear, however,
75
that such negotiations would not necessarily lead to independence.
It follows that independence referendums generally do not have direct or self-executing

legal effects. At best, they can trigger negotiations but do not create a right to
independence. The central government can nevertheless commit itself in advance to
76 77
respecting the outcome of the vote, as in the referendums in East Timor, Montenegro,
78
and South Sudan. It seems that binding referendums are more of an exceptional feature
used in an internationalized peace process rather than a standard in constitutional
democracies. Scotland was an exception in this regard. Unlike the situation of Quebec, the
central government was committed to entering into negotiations with a predetermined
outcome had the majority of Scottish voters supported it. But what is considered to be a
majority?
II. Clear Expression of the Will of the People
In the Quebec case, the Supreme Court of Canada expressed the general threshold for
validity of an independence referendum: “The referendum result, if it is to be taken as an
expression of the democratic will, must be free of ambiguity both in terms of the question
72
See CRAWFORD, supra note 12, at 403–11 (providing a comprehensive overview).
73
2 S.C.R. 217, at para. 87.
74
Id. para. 91.
75
Id.
76
VIDMAR, supra note 65, at 192–93.
77
Id. at 193–94.
78
Id. at 194–95.
79
asked and in terms of the support it achieves.” The definition of the phrase “free of
80
ambiguity” was further specified by the Canadian Clarity Act passed in 2000. With regard
to the winning majority, the Act specifies that clarity of the decision may be determined
by: “(i) the size of the majority of valid votes cast in favour of the secessionist option; (ii)
the percentage of eligible voters voting in the referendum; and (iii) any other matters or
81
circumstances ... consider[ed] to be relevant.” While the Clarity Act refers to, inter alia,
“percentage of eligible votes,” the threshold for the success of a referendum is not
quantified.
With regard to phrasing the referendum question, some guidelines again follow from
Canadian responses to independence referendums in Quebec. The Clarity Act further
specified the Supreme Court’s formulation that the phrasing of the question needs to be
82
“free of ambiguity.” In this context the Act provides:
[A] clear expression of the will of the population of a

province that the province cease to be part of Canada
could not result from
(a) a referendum question that merely focuses on a
mandate to negotiate without soliciting a direct
expression of the will of the population of that province
on whether the province should cease to be part of
Canada; or
(b) a referendum question that envisages other
possibilities in addition to the secession of the province
from Canada, such as economic or political
arrangements with Canada, that obscure a direct
expression of the will of the population of that province
on whether the province should cease to be part of
83
Canada.
Drafters of the Clarity Act evidently pictured two referendums questions in Quebec, both
84
of which implied a future economic association with Canada. Furthermore, the
79
2 S.C.R. 217, at para. 87.
80
See Clarity Act, S.C. 2000, c. 26, art. 1, para. 3 (Can.).
81
Id. art. 2, at para. 2.
82
Id.
83
Id. art. 1, at para. 3.
84
In 1980, the referendum question read:
referendum question in 1980 did not ask directly on independence but rather on a
mandate for the Government of Quebec to negotiate a new arrangement with the rest of
Canada, possibly leading to independence. While reflecting the Quebec experience, the
minimum standard set by the Clarity Act reaches beyond the specific Canadian context and
has universal validity. Indeed, a misleading question could not yield “free and genuine
85
expressions of the will of the people,” as demanded by the ICJ in Western Sahara.
The Scottish question was exceptionally clear: “Should Scotland be an independent

86
country? Yes/No.” This was not the case in Crimea where two questions were asked: “Are
you in favour of unifying Crimea with Russia as a part of the Russian Federation?”; and
“[a]re you in favour [sic] of restoring the 1992 Constitution and the status of Crimea as a
87
part of Ukraine?” At the very least, this formulation is ambiguous. Worse still, it may well
mean that the incorporation in Russia would happen by detour through the 1992
88
Constitution. The status quo was not even offered. Effectively, the choice may well have
been between a straightforward integration with Russia, and a somewhat complicated
integration with Russia. This is much different than the simple yes or no clearly phrased
question in Scotland.
The Government of Québec has made public its proposal to negotiate

a new agreement with the rest of Canada, based on the equality of
nations; this agreement would enable Québec to acquire the
exclusive power to make its laws, administer its taxes and establish
relations abroad in other words sovereignty and at the same time, to
maintain with Canada an economic association including a common
currency; any change in political status resulting from these
negotiations will be submitted to the people through a referendum;
on these terms, do you agree to give the Government of Québec the
mandate to negotiate the proposed agreement between Québec and
Canada?
And in 1995: “Do you agree that Québec should become sovereign, after having made a formal offer to Canada
for a new economic and political partnership, within the scope of the Bill respecting the future of Québec and of
the agreement signed on 12 June 1995?” See Patrick Dumberry, Lessons Learned from the Secession Reference
before the Supreme Court of Canada, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 416, 418–20 (Marcelo G. Kohen
ed., 2006).
85
86
See Referendum on Independence for Scotland Advice of the Electoral Commission on the Proposed Referendum
Question, THE ELECTORAL COMMISSION (Jan. 2013), http://www.electoralcommission.org.uk/__data/assets/pdf
_file/0007/153691/Referendum-on-independence-for-Scotland-our-advice-on-referendum-question.pdf.
87
See Richard Balmforth, No Room for 'Nyet' in Ukraine's Crimea Vote to Join Russia, REUTERS (Mar. 11, 2014),
http://www.reuters.com/article/2014/03/11/us-ukraine-crisis-referendum-idUSBREA2A1GR20140311.
88
Keir Giles, Crimea’s Referendum Choices Are No Choice at All, CHATHAM HOUSE (Mar. 10, 2014), https://www
.chathamhouse.org/media/comment/view/198079#.
How about a clear winning majority? Unlike all other independence referendums in
89
comparative practice, the Scottish regulation did not specify the winning majority. There
was a silent understanding, however, that a relative majority of all votes cast would
90
decide. Such a majority was relatively undemaviolatending and did not even prescribe a
participation rate. South Sudan, for example, prescribed fifty percent plus one vote, at a
91
participation rate of at least sixty percent. A demanding majority of all those eligible to
92
vote has been formally prescribed only on one occasion—in Slovenia in 1991.
Nevertheless, such a demanding majority is almost always achieved in practice. Only
Montenegro has become independent in recent practice with a vote falling under fifty
93
percent of all those eligible to vote.
The Crimean vote for joining Russia was overwhelming: Ninety-five-point-five percent at a
94
turnout rate of eighty-three percent. State practice, however, shows that territorial
referendums are only a necessary but not a sufficient requirement for a change in the legal
status of a territory. A successful referendum, though democratically legitimate, does not
create an entitlement to independence. At best, it creates a duty to negotiate a new legal
status of the territory that could well lead to wider autonomy and self-government. As the
Crimean referendum did not alter the existing international boundaries, Russia’s activities
were directed against territorial integrity of another state and thus prohibited by Article
95
2(4) of the UN Charter. Furthermore, given the questions asked and the fact that there
was virtually no time for deliberation and dialogue between the ethnic groups in Crimea,
even democratic legitimacy of the referendum appears to be in question. This is not to say
that international law does not take account of the demands of ethnic Russians in Crimea,
or even that the referendum itself was illegal under international law. It is rather that
Russia’s intervention led to an international territorial illegality.
89
See SCOTTISH PARLIAMENT, SCOTTISH INDEPENDENCE REFERENDUM BILL (2013), at http://www.scottish.parliament.uk
/parliamentarybusiness/Bills/61076.aspx (last visited on Oct. 30, 2013).
90
See Andre Lecours & Stephanie Kerr, Towards the Scottish Referendum, 3 FEDERAL NEWS no. 8 (Dec. 2012),
http://ideefederale.ca/documents/Dec_2012_ang.pdf (arguing that the UK government was willing to accept this
relatively low threshold also because the opinion polls are consistently showing the threshold would not be met).
91
See UNITED NATIONS DEVELOPMENT PROGRAMME, THE COMPREHENSIVE PEACE AGREEMENT (2005), http://www.sd
.undp.org/doc/CPA.pdf; see also UNITED NATIONS MISSION IN SUDAN, THE SOUTHERN SUDAN REFERENDUM ACT, art 41
(2009), http://unmis.unmissions.org/Portals/UNMIS/Referendum/SS%20Referendum%20MOJ-Englis.pdf.
92
Plebiscite on the Sovereignty and Independence of the Republic of Slovenia, Official Gazette of the Republic of
Slovenia, No. 44-2102/1990 (Dec. 2, 1990), art. 3.
93
INTERNATIONAL CRISIS GROUP, MONTENEGRO’S REFERENDUM, Briefing No. 42, 6 (2006).
94
See Crimea Referendum: Voters ‘Back Russia Union,’ supra note 1.
95
See U.N. Charter art. 2, para. 4 (“All members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.”).
E. Conclusion
International law is neutral on the question of unilateral secession. Where declared

unilaterally, secession is unlikely to be effective unless the entity establishes effective
control over the territory and foreign states are widely willing to recognize the shift of
territorial sovereignty. They are not required to do so; granting recognition is never a duty.
Furthermore, legal neutrality ends where outside force is used or threatened in order to
effectively sever a territory from its parent state. Under such circumstances, foreign states
are precluded from granting recognition and the law cannot be “updated” with new facts.
A legal fiction is thus established: A detached or annexed territory is still a part of that
state. In Crimea, the problem is not that secession from Ukraine would be unilateral. It is
rather that it would be achieved by Russia’s illegal resort to force. As a consequence,
Crimea is under Russia’s effective control, but, in international law, such legal fiction has
been established that the territory is still under Ukraine’s sovereignty.
The exercise of the right of self-determination and democratically expressed will of the
people neither create a right to independence, nor “cure” territorial illegality caused by
illegal use of force. A forceful annexation of a territory of a foreign state is thus prohibited
in international law, even if widely supported by the majority population of that territory.
Not any detachment of a territory from its parent state is illegal however; it is only unlikely
to succeed. The referendum in Crimea could, at best, create a duty on both sides to
negotiate a future legal status of the territory without a predetermined outcome. This
could even be a wider arrangement for autonomy and self-government, perhaps even with
certain elements of shared sovereignty, but does not necessarily lead to integration with
Russia.
The Virtues of Bright Lines: Self-Determination, Secession, and

External Intervention
By Brad R. Roth*
Abstract
The United Nations Charter-based international order sought to reconcile the self-
determination of peoples with the inviolability of state boundaries by presuming sovereign
states to be manifestations of the self-determination of the entirety of their territorial
populations. This presumption, albeit notionally rebuttable, traditionally prevailed even
where states could only by a feat of ideological imagination be characterized as “possessed
of a government representing the whole people belonging to the territory without
distinction.” But the international reaction to fragmentation in the former Yugoslavia—
regarding both the initial “dissolution” and the subsequent struggle over Kosovo—called
into question the rigid doctrines of the past and opened the door to secessionist claims
theretofore dismissible as beyond the pale. Although no vindication of Russian
intervention in Ukraine can properly be drawn from the Yugoslav cases, the Ukrainian
crises help to surface the hidden dangers of an emerging jurisprudence that would allow
previously inadmissible considerations—whether ethnic, historical, constitutional, or
“democratic”—to compromise the territorial inviolability norm.
A. Introduction
At the level of abstract principle, the United Nations Charter (The Charter) speaks in the
name of the “Peoples of the United Nations” and predicates international peace and
cooperation “on respect for the principle of equal rights and self-determination of
1
peoples.” Yet the Charter’s paramount operative norm has long been understood to be
the territorial inviolability of existing sovereign states. This norm is highly prejudicial to the
putative political communities that assert themselves in configurations non-coextensive
with their states’ territorial populations. By sweepingly prohibiting inter-state exertions of
coercion and force—while licensing such exertions within state boundaries—the
international legal order has effectively privileged sovereignty arrangements that frustrate
these communities’ demands for self-governance.
*
Brad R. Roth is a professor of political science and law at Wayne State University, Detroit, Michigan.
1
U.N. Charter Preamble, art. 1(2).
2015 The Virtues of Bright Lines 385
Whether this tension rises to the level of a contradiction depends on how one understands
the legal meaning of “peoples”—as distinct from “ethnic, religious, or linguistic
2 3
minorities” or “indigenous or tribal peoples” —as well as how one understands the right
of all peoples “freely [to] determine their political status”—a phrase synonymous, in its
4
original usage, with an option on sovereign independence. The Charter and the U.N.
General Assembly’s quasi-authoritative interpretive glosses—above all, the Friendly
5
Relations Declaration adopted in 1970—can be construed to reconcile the self-
determination of peoples with the territorial inviolability of states by first rebuttably
presuming sovereign states to be manifestations of the self-determination of the entirety
of their territorial populations, and then interpreting this presumption through a pluralistic
6
lens that disqualifies only the vestiges of western European colonialism. Thus, territorial
inviolability prevails even where states can, only by a feat of ideological imagination, be
characterized as “possessed of a government representing the whole people belonging to
7
the territory without distinction.” Crafted in an ideologically riven international society
2
See International Covenant on Civil and Political Rights art. 27, Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter
ICCPR].
3
See Convention Concerning Indigenous and Tribal Peoples in Independent Countries art. 1(3), Sept. 5, 1991, 72
I.L.O. 169 (“The use of the term ‘peoples’ in this Convention shall not be construed as having any implications as
regards the rights which may attach to the term under international law.”). But see G.A. Res. 61/295, Declaration
on the Rights of Indigenous Peoples (Sept. 13, 2007) (seeming to elide the distinction).
4
See, e.g., G.A. Res. 1514 (XV), annex, ¶ 2 (Dec. 14, 1960); Declaration on the Rights of Indigenous Peoples, supra
note 3, art. 3 (ascribing to indigenous peoples the right to self-determination, nominally including the right to
“freely determine their political status,” though pointedly excluding any impairment of existing states’ “territorial
integrity or political unity”); id. at art. 46. This qualification apparently assuaged African states that had
theretofore insisted that the “principle of self-determination applies only to peoples under colonial and/or
foreign occupation.” African Group, Draft Aide Memoire on United Nations Declaration on the Rights of
Indigenous Peoples (2006), http://www.ipacc.org.za/uploads/docs/Africanaidememoire.pdf.
5
G.A. Res. 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation Among States in Accordance with the Charter of the United Nations (Oct. 24, 1970) [hereinafter
Friendly Relations Declaration].
6
See Brad R. Roth, Secessions, Coups, and the International Rule of Law: Assessing the Decline of the Effective
Control Doctrine, 11 Melbourne J. Int’l L. 393, 402–09 (2010) (showing that immediately following the
decolonization of the bulk of the Non-Self-Governing Territories, the dominant conception of self-determination
was tightly bound up with non-intervention in the internal affairs of emergent states); see, e.g., G.A. Res. 2131
(XX), Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of
Their Independence and Sovereignty (Dec. 21, 1965); G.A. Res. 36/103, Declaration on the Inadmissibility of
Intervention and Interference in the Internal Affairs of States (Dec. 9, 1981) [hereinafter 1981 Non-Intervention
Resolution] (an especially provocative 1981 non-intervention resolution, passed 120-22-6 over the opposition of
many western liberal states, asserting that “[t]he duty of a State to refrain from the exploitation and the
distortion of human rights issues as a means of interference in the internal affairs of States”).
7
Friendly Relations Declaration, supra note 5 (“[W]ithout distinction as to race, creed or color.”); see also G.A.
Res. 50/6 (Dec. 14, 1995), ¶ 1 (“[W]ithout distinction of any kind.”); World Conference on Human Rights, Vienna
Declaration and Programme of Action, U.N. Doc. A/CONF. 157/23 (June 25, 1993).
comprised of western, socialist, and non-aligned blocs, this approach furnished the
minimalist normative foundations essential to a broadly acknowledged global territorial
order.
Arguably, this “squaring of the circle” has passed into the realm of legal history.
International reactions to the crises of authority on the territory of the former Socialist
Federal Republic of Yugoslavia (SFRY)—in particular, the 1991–1992 recognitions of the
SFRY’s constitutionally pre-established federal units (most importantly, Croatia and Bosnia-
Herzegovina) as independent and inviolable states in the wake of the federation’s non-
consensual “dissolution,” as well as the increasingly widespread acceptance of Kosovo’s
2008 Unilateral Declaration of Independence—have called into question the premises of
the Cold War-era settlement. Critical elements of the applicable positive law, including the
existence vel non of circumstances justifying external support for secession of integral units
8
of sovereign states, are now authoritatively conceded to be unsettled. Moreover, the
Yugoslav and other cases have inspired among many advocates and scholars a
disparagement of the traditional territorial integrity norm for its insensitivity to claims
based on considerations of democracy, constitutionality, history, or ethno-national
9
coherence.
There are, however, dangers inherent in invoking such considerations against the norm of
territorial inviolability. The multifarious interpretations of those considerations in a
pluralistic international legal environment jeopardize the few bright lines that have been
drawn to establish a framework of accommodation among bearers of otherwise
incompatible political values. By taking considerations of democracy, constitutionality,
history, and ethno-national coherence “off the table” in determinations of the admissibility
10
of aid to secession, traditional norms against cross-border projections of coercive power
transcend competing perspectives on the legitimacy and justness of internal arrangements.
To predicate the foundations of the peace and security order on ideologically contested
propositions would signal that an external use of coercion or force to revise sovereign
boundaries amounts to just another political conflict, rather than an extraordinary breach
requiring an emergent and coordinated international response.
8
See, e.g., Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, 2010 I.C.J. 403, ¶ 82 (July 22) [hereinafter Kosovo Advisory Opinion] (noting that states have
expressed “radically different views” on the doctrinal issues central to determining Kosovo’s status: (1)
“[w]hether, outside the context of non-self-governing territories and peoples subject to alien subjugation,
domination, and exploitation, the international law of self-determination of peoples confers upon part of the
population of an existing State a right to separate from that state”; (2) “whether international law provides for a
right of “remedial secession” and, if so, in what circumstances”; and (3) “whether the circumstances which some
participants maintained would give rise to a right of ‘remedial secession’ were actually present in Kosovo”).
9
See, e.g., JURE VIDMAR, DEMOCRATIC STATEHOOD IN INTERNATIONAL LAW: THE EMERGENCE OF NEW STATES IN POST-COLD WAR
PRACTICE 225–30 (2013) [hereinafter VIDMAR].
10
See, e.g, Friendly Relations Declaration, supra note 5 (“Every State shall refrain from any action aimed at the
partial or total disruption of the national unity and territorial integrity of any other State or country.”).
The Ukraine Crises of 2014–2015 offer a reminder of the value of an international modus
vivendi that brackets ideological disputes and affirms a (relatively) inflexible standard of
territorial inviolability. Even given the uncertainties that developments of the last two
decades have introduced, Russia’s armed take-over of Crimea, and its direct and indirect
forcible interventions in support of the “People’s Republics” of Donetsk and Luhansk, are
11
unambiguous violations of international legal norms. But the more responsive the
applicable law becomes to considerations that can be branded as either so controverted as
to be parochial or so open-textured as to be indeterminate, the less that international law
can serve to mobilize broad-based opposition to cross-border mischief and predation.
To be sure, the traditional insistence on territorial inviolability of existing states has an

element of arbitrariness at its core. On occasion, this arbitrariness places intolerable stress
on the putative rule, justifying the emergence of a narrow exception in keeping with the
traditional framework’s basic logic; a normative order that cannot bend will likely break.
But an overall approach more favorable to external encouragement of secession would
ultimately serve neither the moral principle of self-determination nor the practical project
of inter-state peace.
B. The Neglected Virtues of Bright Lines: International Law in the 2014–2015 Ukraine
Crises
Given the prevalent absence of authoritative interpretation—let alone adjudication and

enforcement—international law is frequently dismissed as so open-textured as to admit of
competing conclusions about its application to any significant controversy. Yet,
international law also incurs criticism for the inflexibility of its foundational rules, which are
deemed both insensitive to imperative principles of justice and unrealistic in the face of
non-compliant but efficacious policies.
The Ukraine Crises of 2014–2015 provide occasion to affirm that international law indeed
has determinate relevant applications; that its characteristic inflexibilities ground
cooperation among participants who cannot be expected to agree about justice; and that
de-legitimation of unlawful conduct serves an important purpose even where non-
compliant policies cannot be reversed in the near term. Russian actions against Ukrainian
territorial integrity have transgressed bright lines, provoking widespread condemnation as
well as economic sanctions from some of Russia’s most important trading partners. The
11
See, e.g., G.A. Res. 68/262 (Mar. 27, 2014) (reaffirming Ukrainian territorial integrity against the purported
transfer of Crimea to the Russian Federation, by a vote of 100 to 11—though disappointingly, there were 58
abstentions and 24 absences). As Mikulas Fabry’s contribution to this symposium notes, the vote count
understates the extent of expressed legal disapproval of Russia’s action, as reflected in the comments of several
states that saw fit to withhold an affirmative vote on the resolution. Mikulas Fabry, How to Uphold the Territorial
Integrity of Ukraine, 16 GERMAN L.J. 416, 422 (2015).
brightness of these lines entails ruling out of consideration a series of matters that, while
significant from some normative perspectives, have traditionally been understood to be
legally irrelevant.
I. The Irrelevance of the Allegedly Unconstitutional Change of Government in Kiev
In February 2014, following massive opposition demonstrations and a violent response by

his government’s forces, Ukrainian President Viktor Yanukovych fled the capital, ultimately
taking refuge in Russia. The Ukrainian legislature thereupon purported to formalize his
removal from office and to replace him with an acting president. Nonetheless, in the
contemporaneous words of Center for Strategic & International Studies fellow Stefan
Soesanto:
Ascertaining the legitimacy of the interim government

in Kiev is quite tricky. According to Article 111 of the
Ukrainian constitution, the President can only be
impeached from office by parliament through “no less
than three-quarters of its constitutional composition.”
On 22 February 2014 the Ukrainian parliament voted
328–0 to impeach President Yanukovych who fled to
Russia the night prior. However for an effective
impeachment under constitutional rules, the 449-
seated parliament would have needed 337 votes to
remove Yanukovych from office. Thus under the
current constitution, Yanukovych is still the incumbent
12
and legitimate President of the Ukraine.
The question became more than academic in the days that followed, when Russia cited an
“invitation” from the constitutional president to send troops into Crimea “to protect
13
civilians.”
Traditional doctrine assigns no significance to this controversy. From this vantage point,
neither Yanukovych’s international standing nor the validity of his invitation turns on
discernment of the “right” answer as a matter of Ukrainian constitutional law. The
international legal order is not a legal order of legal orders, but a legal order of sovereign
12
Stefan Soesanto, quoted in Ashley Deeks, Russia in Ukraine: A Reader Responds, LAWFARE, March 5, 2014,
http://www.lawfareblog.com/2014/03/russia-in-ukraine-a-reader-responds/ (last visited June 18, 2015).
13
Ukraine’s Yanukovych Asked for Troops, Russia Tells UN, BBC, Mar. 4, 2014, http://www.bbc.com/news/world-
europe-26427848 (last visited June 18, 2015). Not long afterward, Yanukovych retracted the “invitation.” See also
Associated Press, Yanukovych Says He Was “Wrong” on Crimea, N.Y. TIMES, Apr. 2, 2014,
http://www.nytimes.com/aponline/2014/04/02/world/europe/ap-eu-russia-yanukovych.html?ref=world (last
visited June 18, 2015).
political communities bearing the “inalienable right” to choose their own political
14
systems, and therefore to breach, alter, or overthrow their existing constitutions. The test
for a governmental apparatus’s capacity to exercise a state’s international legal rights has
traditionally been “effective control through internal processes”; this has generally
remained so—save for highly exceptional circumstances (Haiti, 1991–1994; Sierra Leone,
1997–1998; Cote d’Ivoire, 2010–2011)—even where unconstitutional changes of
government have drawn adverse political reactions (including suspensions of the state’s
15
participation in intergovernmental organizations).
Having been effectively ousted, Yanukovych lacked all standing to speak for Ukraine
internationally. He had even less standing to consent unilaterally on Ukraine’s behalf to the
introduction of foreign forces for the purpose of imposing a partisan conception of public
order (one that had manifestly suffered substantial, even if not country-wide, popular
16
repudiation).
Even more clearly, disturbance of a governmental order does not vitiate the territorial
integrity of a state; such a disturbance at most raises questions about the legal standing of
the agent (the government) to represent the principal (the state), not about the principal’s
14
Friendly Relations Declaration, supra note 5 (“Every State has an inalienable right to choose its political,
economic, social and cultural systems, without interference in any form by another State.”). The International
Court of Justice famously noted in the Nicaragua case that to hold a state’s adherence to any particular
governmental doctrine a violation of customary international law “would make nonsense of the fundamental
principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the
political, social, economic and cultural system of a State.” Military and Paramilitary Activities in and Against
Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, ¶ 263 (June 27) (emphasis added).
15
See Brad R. Roth, Sovereign Equality and Non-Liberal Regimes, 43 NETH. Y.B. INT‘L L. 25, 44–48 (2012).
16
By the logic of self-determination that grounds the effective control doctrine, even a still-recognized
government—at least, where its recognition had been essentially attributable to its having achieved effective
control through internal processes—would appear to lack standing to invite foreign forces to resolve a full-blown
crisis of governmental authority. See, e.g., Louise Doswald-Beck, The Legal Validity of Military Intervention by
Invitation of the Government, 56 BRITISH Y.B. INT‘L L. 189, 233–34 (1985); see generally INSTITUT DE DROIT INT‘L,
Resolution: The Principle of Non-Intervention in Civil Wars, Aug. 14, 1975, http://www.idi-
iil.org/idiE/resolutionsE/1975_wies_03_en.pdf. This limitation has, concededly, not held up well in practice,
especially where the government has had other indicators of popular approval or the opposition has been tainted
by unlawful foreign assistance or peculiarly bad conduct.
Moreover, even where a given governmental order as a whole can speak unilaterally for the state, there is often
reason to question whether a head of state or head of government can speak unilaterally for that governmental
order in inviting foreign troops onto national territory. Where an elected president is unconstitutionally ousted by
an elected legislature (as in Honduras in 2009 or Ukraine in 2014) there is guaranteed (almost irrespective of the
actual language of the constitution) to be an “objectively evident” constitutional doubt about such Presidential
authority—let alone (as in the Crimea example) where exercised with the effect of ceding national territory to a
foreign power.
17
status or sovereign rights. Thus, a breach of constitutional norms does not problematize
the unity of a state—irrespective of whether its constitutional organization is federal or
18
unitary —even where the irregularly constituted government is unpopular or not
19
immediately efficacious in particular parts of the national territory.
II. The Irrelevance of Crimea’s Alleged Will to Secede and Join the Russian Federation
In a hastily organized referendum, held under less than free and fair conditions, an
ostensible majority of Crimean voters opted for secession from Ukraine and incorporation
20
into Russia. Putting aside the irregularities that tainted both the regional parliament’s
vote to call the referendum and the referendum itself, Crimea’s ethnic mix and various
evident manifestations of regional public opinion lend a general plausibility to the claim
that some substantial majority—even if not the officially-reported overwhelming
21
majority—favored the region’s transfer to Russian control.
17
States retain their international legal personality, as well as obligations previously incurred, notwithstanding
fundamental changes of governmental order. The political community is not understood to be re-founded when
there is constitutional discontinuity; in Gabcikovo-Nagymaros, it is not that democratic Hungary succeeds to the
international legal obligations of communist Hungary, but that the obligations incurred by Hungary’s communist
government are those of Hungary tout court. See Case Concerning the Gabcikovo-Nagymaros Project (Hung. v.
Slovak.), Judgment, 1997 I.C.J. 7, 64, ¶ 104 (Sept. 25) (“profound changes of a political nature”—the collapse of
communism—did not amount to a “fundamental change in circumstances” affecting treaty obligations).
18
See Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, 165 L.N.T.S. No. 19, art. 2 (“The
federal state shall constitute a sole person in the eyes of international law.”).
19
Unfortunately, the Badinter Commission’s opinions on the 1991–1992 Yugoslav crisis introduce confusion by
conflating issues of domestic-constitutional and international law. The Commission reasoned that because the
very existence of the Yugoslav state presupposed functioning federal institutions, the collapse of these
institutions and the recourse to force entailed nothing less than “a process of dissolution” of the Yugoslav state
into its component republics. See Conference on Yugoslavia Arbitration Commission, Opinions on Questions
Arising from the Dissolution of Yugoslavia, Jan. 11, 1992, July 4, 1992, 31 I.L.M. 1488, 1496–1500 [hereinafter
Badinter Commission Opinions]. However, this rationale of the European community’s arbitral commission arose
in response to unique circumstances, and thus far, no general trend has emerged to support any ambitious
extrapolations from the logic of the Badinter judgments.
20
David Herszenhorn, Crimea Votes to Secede From Ukraine as Russian Troops Keep Watch, N.Y. TIMES, March 16,
2014, http://www.nytimes.com/2014/03/17/world/europe/crimea-ukraine-secession-vote-referendum.html (last
visited June 18, 2015). But see C. J. Chivers & Patrick Reevell, Russia Moves Swiftly to Stifle Dissent Ahead of
Secession Vote N.Y. TIMES, Mar. 14, 2014, http://www.nytimes.com/2014/03/15/world/europe/pressure-and-
intimidation-sweep-crimea-ahead-of-secession-vote.html (last visited June 18, 2015) (“With a mix of targeted
intimidation, an expansive military occupation by unmistakably elite Russian units and many of the trappings of
the election-season carnivals that have long accompanied rigged ballots across the old Soviet world, Crimea has
been swept almost instantaneously into the Kremlin’s fold.”).
21
Crimea Referendum: Voters ‘Back Russia Union,’ BBC, March 16, 2014, http://www.bbc.com/news/world-
europe-26606097 (last visited June 18, 2015) (“Some 58% of people in Crimea are ethnic Russian, with the rest
made up of Ukrainians and Tatars.”).
Whatever facts might be convincingly established about popular sentiment in the region,
the territory’s international legal status would, according to traditional doctrine, be
unaffected. Sub-national units, however unambiguous may be their popular mandate for
secession, lack an international legal right to be acknowledged as independent and to
thereby invite foreign intervention. Even if “remedial secession”—as to the legality of
which the International Court of Justice expressly withheld judgment in its advisory opinion
22
on Kosovo’s Unilateral Declaration of Independence —could be successfully invoked in the
face of demonstrable predation on the part of the central government, mere popular
apprehension about possible future predation would not plausibly justify a change in a
region’s international status.
Additionally, the region’s ethnic composition—however dissimilar to that of the state to

which it presently belongs, or compatible with that of the state to which it aspires to
belong—is not legally material. Nor is it material that the region’s incorporation into the
former state occurred for arbitrary reasons and in contradiction to the region’s historical
ties to the latter state. Territorial allocations are notoriously arbitrary, and if such
arbitrariness were allowed to problematize inter-state boundaries, the result would be to
license cross-border violence across the globe.
Nor can “democratic” considerations, despite their increased relevance in international

23
law, resolve the “majority of whom” problem inherent in self-determination
24
controversies outside of the decolonization context. Not only is the regional population
not the only cognizable stakeholder, but majority votes within a sub-national territory may
compromise the political equality of internal minorities—all the more likely where the
regional majority’s ethnic identity grounds the independence claim. Even where regional
boundaries have a pre-existing constitutional status and reflect authentic historical
delineations, rather than ethnic gerrymandering, the international order has little reason
to disincentivize conferrals of constitutional autonomy by transmogrifying them into
instruments for the disruption of state sovereignty.
III. The Irrelevance of Ukraine’s Resort to Force to Resolve a Political Dispute in Its Eastern
Regions
In response to the proclamations of the “People’s Republics” of Donetsk and Luhansk, the
Ukrainian central government has demonstrated resolve to restore its territorial integrity
through the use of military force. This might be thought to run afoul of an emerging
22
Kosovo Advisory Opinion, supra note 8, para. 82.
23
See generally Gregory H. Fox & Brad R. Roth, Democracy and International Law, 27 REV. INT’L STUDS. 327 (2001).
24
As noted famously by Ivor Jennings: “[T]he people cannot decide until somebody decides who are the people.”
IVOR JENNINGS, THE APPROACH TO SELF-GOVERNMENT 55–56 (1956), quoted in VIDMAR, supra note 9, at 243.
international legal norm against recourse to force to resolve internal political disputes—an
internal jus ad bellum responsive to the contemporary reality that civil conflicts rather than
25
inter-state wars now constitute the greatest overall “threat to the peace.” Such a
development might even be imagined to license Russia to provide cross-border military
support (in the form of weaponry or even direct uses of force) to the embattled enclaves,
to prevent their being bloodily overrun and to encourage a political rather than a military
solution.
Though some may wish to see the emergence of an internal jus ad bellum, its realization in
positive international law is far-off and likely to be elusive. Such a norm—unless it were to
freeze any status quo established by whatever means on the ground, thereby rewarding
quick forcible seizures—would require prejudgment of the merits of internal disputes.
Absent such prejudgment—analogous to, but inevitably far more complicated than, the
international order’s insistence on respect for borders (however arbitrarily drawn)—it
would be impossible to answer the fundamental question: Is what counts as “recourse to
violence” the resistance to de facto territorial authority, or the suppression of that
resistance? Any such intricately qualitative judgment would be open to charges of bias and
parochialism.
Thus far in international law, the concept of jus ad bellum designedly has had no
application to internal conflict. Insurgents seeking secession (or regime change) enjoy no
international protection (other than the truncated set of jus in bello standards applicable
to non-international armed conflicts), but so long as they are not inadmissibly assisted
from abroad (or seeking to frustrate decolonization), international law does not seek
affirmatively to constrain them from taking their best shot at seizing power, nor to deprive
26
them of success should they achieve it. At the same time, states maintain the sovereign
right to suppress challenges to their territorial integrity, and their acknowledged
governments are vested with authority on their behalf to use force (within the tactical
limitations established by international jus in bello norms) to secure that aim. More
crucially, no foreign state has the authority to supply cross-border support to forces
25
It is sometimes suggested that the pattern of recent Security Council’s Chapter VII edicts in response to in
internal conflicts establishes a norm against recourse to violence to resolve internal political disputes. See, e.g.,
Kalkidan Obse, The Arab Spring and the Question of Legality of Democratic Revolution in Theory and Practice: A
Perspective Based on the African Union Normative Framework, 27 LEIDEN J. INT’L L. 817, 828–29 (2014). But the
Security Council’s extemporary decrees, even if they could be said to comprise such a pattern, do not by
themselves establish norms applicable in the absence of Chapter VII resolutions.
26
As the ICJ in the Kosovo Advisory Opinion noted, the “illegality attached to the declarations of independence [of
Southern Rhodesia, Northern Cyprus, and Republika Srpska] stemmed not from the unilateral character of these
declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of
force or other egregious violations of norms of general international law, in particular those of a peremptory
character (jus cogens).” Kosovo Advisory Opinion, supra note 8, para. 81.
27
defending insurgent-held internal territory. The paradigmatic example is the lawfulness
(putting aside the jus in bello controversies) of Croatia’s forcible extinguishment (in
Operations Flash and Storm of 1995) of Serb-nationalist insurgent enclaves in Western
Slavonia and Krajina, as against the almost-universally acknowledged unlawfulness of
support for those enclaves by the Federal Republic of Yugoslavia (Serbia and Montenegro).
IV. The 2014–2015 Ukraine Crises as an Argument Against Muddying the Waters
Russia’s incursions, direct and indirect, into Ukraine have crossed a bright line. Observers
from a multiplicity of normative perspectives can perceive in common this transgression.
(Indeed, in respect of its intervention in the Donetsk and Luhansk regions, Russia’s factual
denials, however implausible, manifest a consciousness of the norm’s clarity.) The bright
line exists as part of a framework of accommodation among bearers of a diversity of
28
interests and values. It makes possible cooperation among international actors who
cannot be expected to agree on the legitimacy or justice of internal governmental
arrangements. If, in pursuit of a higher justice, the global system forsakes traditional norms
in favor of more nuanced and value-laden approaches to international involvement in
internal conflict, it will end up grounding its foundational norms in the very principles that
are inconclusively contested. Legal condemnation will thus be indistinguishable from mere
political condemnation.
Legal assessments are, of course, inherently and ineluctably political. They are not,
however, reducible to mere partisanship; indeed, it is precisely the political purposes that
they serve that require their transcendence of immediate political agendas. Events such as
Russia’s putative annexation of Crimea and its intervention in Eastern Ukraine, though
resistant to total abolition, are nonetheless fairly rare occurrences in contemporary
international relations. To keep them rare, the international order needs to be able to
distinguish violations of foundational norms from conduct that is merely politically
provocative, and thus subject to assessments that turn on differing geostrategic interests
and ideological principles. It is a pluralist normative order that establishes and maintains
29
the capacity to call aggression by its true name.
27
See, e.g., Friendly Relations Declaration, supra note 5 (“[N]o State shall . . . interfere in civil strife in another
State.”).
28
See generally BRAD R. ROTH, SOVEREIGN EQUALITY AND MORAL DISAGREEMENT (2011).
29
The preceding section was adapted from the written version of panel remarks delivered at the October 2014
annual meeting of the American Branch of the International Law Association. Brad R. Roth, The Neglected Virtues
of Bright Lines: International Law in the 2014–15 Ukraine Crises, 21 ILSA J. INT’L & COMP. L. 317 (2015).
C. The Inevitable Blurring of Lines: International Law in the Yugoslav Cases
The traditional approach outlined above is concededly unappetizing. It sacralizes

boundaries that reflect conquests predating the establishment of the twentieth-century
global peace-and-security order, and addresses internal conflicts in a manner designedly
neutral as between just and unjust—perhaps even good and evil—causes. It reaffirms and
reinforces outcomes that can range from untoward to morally intolerable.
One thus cannot be surprised that the international community has abided ad hoc
deviations from the traditional approach’s strict logic. But one equally cannot be surprised
that in so doing, the international community has sought to assimilate innovations to
business as usual, avoiding any overt admission of fundamental change in the doctrinal
structure. This combination has led to intellectual dishonesty and an accompanying
erosion of doctrinal foundations, without the emergence of any substituted doctrinal
framework for resolving secession questions.
A crucial episode occurred at the commencement of the post-Cold War era with the
international community’s recognition of the statehood and territorial inviolability of units
declaring independence from the unraveling Socialist Federal Republic of Yugoslavia
(SFRY). That collective practice drew on a legalistic rationale provided by the judgments of
European Community’s Conference on Yugoslavia Arbitration Commission (Badinter
Commission). For reasons that made eminent political sense, the Badinter Commission
judgments were presented as applications of unaltered international law. Yet on close
examination, the judgments failed altogether to square with the logic of the pre-existing
doctrine. Both the outcomes and the seemingly disingenuous denials of innovation served
several important political (and indeed, moral) purposes, but they raise significant
questions about the principles and policies that actually animate recognition practice.
A second episode stemming from the Yugoslav experience was the international reaction
to the 2008 Unilateral Declaration of Independence by the “Provisional Institutions of Self-
Government of Kosovo.” This episode, too, is associated with authoritative legal
commentary, although the ICJ Advisory Opinion scrupulously evaded the pivotal questions,
thereby allowing a deviation from traditional doctrine to co-exist with continuing denials of
doctrinal change.
I. Non-Consensual Dissolution: The Badinter Commission’s Unacknowledged Improvisation
On 25 June 1991, Slovenia and Croatia—component republics of the Yugoslav federation—

declared independence. Slovenia’s ensuing seizure of border posts in its territory from the
Yugoslav People’s Army (JNA) prompted a brief armed conflict, but a cease-fire shortly
followed. Slovenia’s path to independence—though formally delayed by the terms of the 7
July 1991 Brioni Accords—was from then on essentially unimpeded.
Croatia’s independence effort, however, prompted much more serious difficulties. Forces
representing Croatia’s minority (twelve to fifteen percent) Serb population, geographically
concentrated in the central region of Krajina and the northeastern regions of Western and
30
Eastern Slavonia, were in armed rebellion against the elected nationalist Croatian
government—rebellion facilitated by units of the Serb-dominated JNA stationed in
Croatian territory. Pro-independence governments in Macedonia and in Bosnia-
Herzegovina were also laying the groundwork for secession, meaning that four of the six
Yugoslav republics, comprising a majority (over fifty-six percent) of the federation’s
population, were seeking to withdraw from the SFRY. With the federal government’s
constitutional processes deadlocked, Serbia’s partisans within federal institutions resorted
to unconstitutional measures to seek to maintain the federation on Serbia’s terms or,
failing that, to annex to Serbia substantial Croatian and Bosnian territories bearing
concentrated Serb populations.
As the war in Croatia intensified, with the preponderance of atrocities being committed by
31
Croatian Serb irregulars, the European Community on 27 August 1991 formed a
Commission to advise on the legalities of the crisis. (Although referred to as an “Arbitration
32
Commission,” its judgments were understood not to be binding.) The Commission,
comprised of five European Constitutional Court Presidents from France, Germany, Italy,
Spain, and Belgium., was led by French Conseil Constitutionnel President Robert Badinter.
Notwithstanding the Commission’s august membership, its mandate left little doubt from
the outset about the contours of its ultimate conclusions. Simultaneously with their
formation of the Commission, the EC ministers issued the following statement:
The European Community and its member States are

dismayed at the increasing violence in Croatia. They
remind those responsible for the violence of their
determination never to recognize changes of frontiers
which have not been brought about by peaceful means
30
Peter Radan, The Serb Krajina: An Unsuccessful Secession from Croatia, in THE ASHGATE RESEARCH COMPANION TO
SECESSION, 523, 523 (Aleksandar Pavković & Peter Radan eds., 2011). From the standpoint of many of Croatia’s
Serbs, withdrawal from the federation represented an existential threat, vitiating that community’s consent to
the boundaries of the republic. The new Croatian proto-state officially characterized itself as “the national state of
the Croat nation,” with Serbs relegated to the status of a national minority rather than a constituent nation. Id.
For good measure, it adopted some of the same historical symbols of Croatian identity employed by World War II-
era Nazi-backed Independent State of Croatia (NDH), which encompassed roughly the territory of both Croatia
and Bosnia-Herzegovina and which orchestrated mass killings of Serbs.
31
Prosecutor v. Martić, Case No. IT-95-11-T, paras. 161–336 (Int‘l Crim. Trib. for the Former Yugoslavia June 12,
2007) (showing factual findings and details of the character of the Serb-nationalist military and paramilitary
campaign in Croatia).
32
See, e.g., VIDMAR, supra note 9, at 79.
and by agreement. It is a deeply misguided policy on the

part of the Serbian irregulars to try to solve the
problems they expect to encounter in a new
constitutional order through military means. It is even
more disconcerting that it can no longer be denied that
elements of the Yugoslav People’s Army are lending
their active support to the Serbian side. The Community
and its member States call on the Federal Presidency to
put an immediate end to this illegal use of the forces
under its command. The Community and its member
States will never accept a policy of fait accompli. They
are determined not to recognize changes of borders by
force and will encourage others not to do so
33
either . . . .
These statements, consistent with earlier pronouncements of the Conference on Security

34
and Cooperation in Europe (CSCE), manifestly prejudged all of the essential elements of
35
the legal controversy. What remained was to rationalize the solution—independence for
Croatia and other seceding republics with their constitutionally established boundaries
intact—by reference to existing legal doctrines.
33
Declaration of Yugoslavia, European Political Cooperation Extraordinary Ministerial Meeting, No. 4b/64 of 27
Aug. 1991, reprinted in EUROPEAN FOREIGN POLICY: KEY DOCUMENTS 363 (Christopher Hill & Karen E. Smith eds., 2000)
(emphasis added), http://hist.asu.ru/aes/EFP_Documents_0415158222.pdf.
34
Marc Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86
AM. J. INT‘L L. 569, 575 (1992).
35
The official Serbian counter-narrative was as follows:
The Serbian people . . . demanded respect and protection of their

legitimate national and civil rights. When Croatia decided to secede
from Yugoslavia and form its own independent State, the Serbs
inhabiting their ethnical territories in this republic decided to break
away from Croatia and remain within Yugoslavia . . . . Faced with the
serious danger of a more widespread conflict, the Presidency of the
SFRY instructed the Yugoslav People's Army to prevent such conflicts
by standing as a neutral force between the parties in conflict.
However, the Croatian authorities, instead of accepting such a
mission of the YPA [JNA], openly attacked not only the Serbian
people which it branded as a band of outlaws, but also. . . the
Yugoslav People's Army which it termed an army of occupation. This
is how war was thrust upon Yugoslavia. In such a situation it was
essential to protect the Serbian people from extermination.
S.F.R.Y. Collective Presidency Chair Borisav Jovic, Address at the Assembly of the Socialist Federal Republic of
Yugoslavia (Mar. 19, 1992), reprinted in REV. INT’L AFFAIRS 11–12 (1992), quoted in Weller, supra note 34, at 574.
36
While many scholars have criticized the Badinter Commission judgments, few have
identified the fundamental problem: The Commission was charged with accomplishing a
task that fell not merely outside the scope of existing legal rules, but ultra vires of
international law’s traditional purposes. The traditional approach of international law did
not provide—nor purport to provide—a principled basis for governing the interactions of
the federation’s constituent groups; it left those as matters “essentially within the
domestic jurisdiction,” to be worked out through internal processes, however harsh.
The central theme of the Commission’s approach was to characterize the SFRY not as a
state in civil war, beset by multiple contested efforts at secession, but as a federation
undergoing a non-consensual “dissolution.” Traditionally, however, crises of constitutional
or other effective authority have not been deemed to affect a state’s status. Many states—
quintessentially Somalia and Lebanon—have experienced long periods during which they
have lacked an effective central government while rival authorities have maintained zones
of control, but it has never been suggested that these states had “dissolved.” Absent
mutual consent of efficacious regional authorities, dissolution would follow only from a
decisive creation—by force, if necessary—of a stable set of new facts on the ground.
But of course, such fact creation was precisely what the Badinter Commission had, quite
understandably, been designed to pre-empt. The result was a blend of constitutional law
and international law principles, concocted in order to draw a line against the ethno-
national project that both the European political leadership and the judges evidently
deemed, on moral and political grounds—and not without justification in those terms—to
be most at fault for the descent into violence: the Serb nationalist movement.
The critical move came in the Commission’s very first Opinion, dated 29 November 1991.
There, the Commission asserted that:
In the case of a federal-type State, which embraces

communities that possess a degree of autonomy and,
moreover, participate in the exercise of political power
within the framework of institutions common to the
Federation, the existence of the State implies that the
36
For trenchant criticisms of the Badinter Commission opinions, see, e.g., MIODRAG JOVANOVIC, CONSTITUTIONALIZING
SECESSION IN FEDERALIZED STATES: A PROCEDURAL APPROACH 83–114 (2007); Timothy William Waters, Contemplating
Failure and Creating Alternatives in the Balkans: Bosnia’s Peoples, Democracy, and the Shape of Self-
Determination, 29 YALE J. INT‘L L. 423, 438–44 (2004); Mikulas Fabry, International Norms of Territorial Integrity
and the Balkan Wars of the 1990s, 16 GLOBAL SOC’Y 145 (2002); Peter Radan, Yugoslavia’s Internal Borders as
International Borders: A Question of Appropriatreteness, 33 E. EUR. Q. 137 (1999); Michla Pomerance, The
Badinter Commission: The Use and Misuse of the International Court of Justice’s Jurisprudence, 20 MICHIGAN J. INT‘L
L. 31 (1998); Hurst Hannum, Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles? 3 TRANSNAT’L. L.
& CONTEMP. PROBS. 57 (1993).
federal organs represent the components of the

37
Federation and wield effective power.
In assessing the facts on the ground at that time, the Commission found that:
The composition and workings of the essential organs

of the federation . . . no longer meet the criteria of
participation and representativeness inherent in a
federal state; the recourse to force has led to armed
conflict from the different elements of the federation
which has caused the death of thousands of people and
wrought considerable destruction within a few months.
The authorities of the Federation and the Republics
have shown themselves to be powerless to enforce
38
respect for . . . ceasefire agreements . . . .
Since the very existence of the Yugoslav state presupposed functioning federal institutions,
the Commission reasoned, the collapse of these institutions and the recourse to force
entailed nothing less than “a process of dissolution” of the Yugoslav state into its
component republics. The Yugoslav state was thereby said to be losing its international
39
legal personality, with the six republics collectively succeeding to that personality.
In the second and third Opinions, issued on 11 January 1992, the Commission made further
determinations that flowed directly from the first judgment. According to the Commission,
with the disappearance of central authority, the republics’ territorial relations inter se were
to be governed—even before the territories’ objective emergence as states, let alone any
formal external recognition—by the venerable principle of uti possidetis, which in the
decolonization context had ascribed to the newly independent states their previous
40
colonial boundaries.
From a traditional standpoint, these judgments are littered with errors: First, the
Commission treats federal states as though different from unitary states, whereas a federal
37
Badinter Commission Opinions, supra note 19, at 1495, No. 1, para. 1(d).
38
Id. at 1496–97, No. 1, para. 2.
39
Id. at 1498, 1500, No. 1, para. 3.
40
Id. at 1498, 1500, Nos. 2 & 3. Although the Commission did not predicate its framework of decision on
constitutional interpretation, it asserted that the principle by which the boundaries were internationalized
applied “all the more readily to the Republics since the second and fourth paragraphs of Article 5 of the
Constitution of the SFRY stipulated that the Republics' territories and boundaries could not be altered without
their consent.” Id. at 1500, No. 3. This statement rather conveniently omitted mention of the provision of Article
5 that required consent of all Republics to the changes in SFRY frontiers.
or unitary institutional configuration—an artifact of a constitutional order that the state

my alter or overthrow in the exercise of “inalienable” sovereign prerogative—is
41
traditionally deemed irrelevant to a state’s international legal personality.
Second, as noted above, the Commission departs from a consistent pattern of state
practice and opinio juris in identifying a loss of governmental coherence with a loss of state
coherence. Many states have undergone far more prolonged periods in which the central
government lacked effective control over large portions of the national territory, yet in
none of these cases did the international order regard the state as having been in a
42
process of dissolution.
Third, whereas the Commission deems an inability to maintain effective control and to
quell violence in the national territory as indicative of dissolution of the SFRY, it applies no
such efficacy standard to the governments of the emergent successor states (in particular,
Croatia and, subsequently, Bosnia-Herzegovina, both of which would manifestly have failed
43
such a test). This turns on its head the traditional rule against “premature recognition”
that resists acknowledging new sovereignty arrangements until they have been irreversibly
44
established on the ground.
Fourth, the Commission imports the principle of uti possidetis from the decolonization
process, unmindful of the implications of newly decolonized entities having been liberated
from the colonial powers rather than from one another. In the colonial context, uti
possidetis preserved the status quo inter se, whereas here it produced a drastic shift in
45
power relations among the emergent states’ constituent groups. Indeed, at least from
the perspective of the Serb minorities in Croatia and Bosnia, the SFRY internal boundaries
had been thoroughly predicated on the unity of—and balance of federal rights among—
46
the ethnic communities that the Yugoslav state embodied. Moreover, whereas uti
possidetis had previously taken effect upon the establishment of new states emerging from
41
See Montevideo Convention, supra note 18, art. 2 (“The federal state shall constitute a sole person in the eyes
of international law.”).
42
See, e.g., Robert H. Jackson & Carl G. Rosberg, Why Africa’s Weak States Persist: The Empirical and Juridical in
Statehood, 35 WORLD POLS. 1 (1982).
43
See generally ANA S. TRBOVICH, A LEGAL GEOGRAPHY OF YUGOSLAVIA’S DISINTEGRATION (2008).
44
See, e.g., J.L. BRIERLY, THE LAW OF NATIONS 138 (C.H.M. Waldock ed., 6th ed. 1963) (“[S]o long as a real struggle is
proceeding, recognition is premature, whilst, on the other hand, mere persistence of the old state in a struggle
that has obviously become hopeless is not a sufficient cause for withholding it.”), quoted in David A. Ijalaye, Was
“Biafra” At Any Time a State in International Law?, 65 AM. J. INT‘L L. 551, 558 (1971).
45
See, e.g., Pomerance, supra note 36, at 50–57.
46
See Radan, Yugoslavia’s Internal Borders as International Borders, supra note 30.
colonialism, here the boundaries were deemed to become inviolable at the inception of a
47
“process of dissolution.”
By invoking the combination of non-consensual dissolution and uti possidetis, the

Commission managed to validate the dismemberment of the SFRY into its component
republics without any resort to the principle of self-determination, thereby avoiding sticky
questions about the right to self-determination on the part of Serbs within Croatia and
Bosnia-Herzegovina. Whatever might be said for the latter—to which the Commission
spoke in the vaguest possible terms—this right could not be implemented through forcible
48
changes in the Republics’ boundaries. Croatia’s Serbs might well have wondered why, if
Croatia could be supported in its secession from Yugoslavia, a Croatian Serb republic
(Republika Srpska Krajina) could not be equally supported in its effort to secede from
49
Croatia. The answer given—a masterpiece of bloodless formalism—was that Croatia was
not seceding, but rather succeeding to a share, demarcated by the republic borders, of the
50
legal personality of the dissolved Yugoslav federation.
In reality, the Commission’s judgments were responsive to situational considerations of

morality, policy, and politics that were orthogonal to the doctrinal considerations on which
the Commission purported to rely. As the Croatian conflict had by late 1991 already
demonstrated, an internal war to carve out new territorial units on an ethno-national basis
would entail, as an almost inevitable concomitant, the phenomenon of mass expulsions
and associated atrocities that has come to be known by the failed euphemism, “ethnic
51
cleansing.” If an ethno-national project could establish an internationally recognized
claim to territory by seizing and holding effective control over it, there would be a natural
motivation to purge the territory of populations presumptively loyal to a rival project (and
indeed, even to encourage rivals’ expulsions of one’s own co-ethnics, who could then be
settled in the carved-out territory, completing its demographic transformation). As applied
to the case at hand, the Commission’s approach seemed well calculated to stem a kind of
violence, however “internal,” that the international order came to perceive as beyond the
52
pale.
47
See JOVANOVIC, supra note 36, at 107.
48
Badinter Commission Opinions, supra note 19, at 1497–1500, Nos. 2 & 3.
49
For a summary of the Serb grievances against the emergent Croatian state, see Robert M. Hayden, Nationalism
in the Formerly Yugoslav Republics, 51 SLAVIC REV. 654, 657–58 (1992).
50
Badinter Commission Opinions, supra note 19, at 1495–96, No. 1, para. 1(e).
51
See Prosecutor v. Martić, supra note 31, paras. 161–336.
52
Whereas the international system had once accepted “population transfer” as a legitimate means of sorting out
rival self-determination claims, see, for example, Timothy William Waters, Remembering Sudetenland: On the
Legal Construction of Ethnic Cleansing, 47 VA. J. OF INT’L LAW 63 (2006). That system was now coming to
understand both the end and the probable means of such transfer as “crimes against humanity.” See, e.g., UN
Yet in broad structural terms, the Badinter Commission judgments represented simply a
reallocation of licenses to establish and maintain order by force. Underscoring this point is
Croatia’s 1995 Operation Storm, which forcibly asserted Croatia’s sovereignty over the
Republic’s breakaway territories, and which is widely characterized as having entailed
53
“ethnic cleansing” in the reverse direction.
As to both Croatia and Bosnia-Herzegovina, the Commission invoked referendum results as

a guide to popular will in those republics in a manner that begged the question: The
democratic will of majorities within pre-established territories was credited, whereas the
democratic will of the (more or less geographically-concentrated) Serb populations of
those territories—either to remain within one Yugoslavia or, alternatively, to secede prior
to the pre-established territories’ emergence as sovereign states—was expressly
disregarded. Whereas artifacts of Yugoslav constitutionalism were invoked where
favorable to separation, the consociational aspects of the federation’s constitutional
traditions—according political status to constituent ethnic communities as well as to
54
territorially-defined populations—were conveniently forgotten. The Badinter Commission
solution’s overall emphasis on the republics’ boundaries at the expense of ethno-national
claims for self-determination served, not to thwart ethno-nationalism throughout the
Doc. A/CONF. 183/9, Rome Statute of the International Criminal Court, Art. 7 (1998) (enumerating crimes against
humanity: A “widespread or systematic attack . . . against [a] civilian population”); Prosecutor v. Blagojević and
Jokić, Case No. IT-02-60-T, ¶ 595 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 17, 2005) (“[D]isplacements
within a state or across national borders, for reasons not permitted under international law, are crimes
punishable under customary international law.”).
53
See, e.g., HUMAN RIGHTS WATCH, Croatia: Impunity for Abuses Committed During ‘Operation Storm’ and the
Denial of the Right of Refugees to Return to the Krajina, 8 REPORTS 13 (1996),
http://www.hrw.org/reports/1996/Croatia.htm (“The offensive . . . resulted in the . . . displacement of an
estimated 200,000 who fled in the immediate aftermath. . . . These abuses by Croatian government forces, which
continued on a large scale even months after the area had been secured by Croatian authorities, included
summary executions of elderly and infirm Serbs who remained behind and the wholesale burning and destruction
of Serbian villages and property.”).
54
On October 14, 1991 Bosnia’s Parliament declared the Republic’s sovereignty, with the support of parties
associated with the Bosniak plurality (an estimated 44% of Bosnia’s population) and the Croat minority (17%),
albeit without the participation of the parties associated with the Serb minority (31%). In its January 11, 1992
Opinion (No. 4), the Commission concluded that “the will of the peoples of Bosnia-Hercegovina to constitute the
[Republic] as a sovereign and independent State cannot be held to have been fully established. . . . ” Badinter
Commission Opinions, supra note 19, at 1503, No. 4. But then, curiously, it added: “This assessment could be
reviewed if appropriate guarantees were provided by the Republic applying for recognition, possibly by means of
a referendum of all the citizens of the [Republic] without distinction, carried out under international supervision.”
Id. The non sequitur was entirely overlooked: the first sentence invoked “the will of the peoples” severally,
whereas the second evidently eschewed peoplehood as a relevant category, indicating that the will of a simple
majority of individual citizens can override a dissenting “people,” however cohesive.
SFRY, but to realize exclusively those ethno-national aspirations that happily coincided
55
with constitutionally-established boundaries.
Jure Vidmar (among others) contends provocatively that it was not the constitutional basis,
but the historical “pedigree” of the particular internal boundaries, that was the decisive
56
consideration in the Commission’s assessment of the Yugoslav dissolution. The problem
with that explanation—which the Commission nowhere invoked—is the ineluctable
contentiousness of this and any such proposition, in the Yugoslav case and beyond. The
history can be read in different ways, emphasizing different historical baselines. It is
ahistorical to imply that six independent states, possessed of these borders, consensually
57
united to form the Yugoslav federation. Moreover, while there is historical “pedigree” to
boundaries that left Croatian and Bosnian Serbs separate from Serbia and subject to non-
Serb territorial majorities, this was one of the problems to which the Yugoslav federation
was supposed to have been a solution; the federation was conceptualized as a union of
constituent nations, and Serb assent to the legitimacy of the internal boundaries
58
presupposed, and was contingent on, the continued existence of the union.
Nonetheless, there was a distinct sense in which the Badinter Commission had ample basis
for adjudging that “the essential organs of the federation . . . no longer meet the criteria of
participation and representativeness inherent in a federal state.” There was not simply a
55
See, e.g., Peter Radan, The Badinter Arbitration Commission and the Partition of Yugoslavia, 25 NATIONALITIES
PAPERS: J. NATIONALISM & ETHNICITY 537, 543 (1997).
56
VIDMAR, supra note 9, at 234.
57
According to notions predominant in Slovenia and Croatia, the federation represented a historically contingent
agreement of its several constituent territorial republics, the boundaries of which conceptually preceded rather
derived from the union; in this view, each republic maintained, as an inherent right of self-determination, a latent
sovereign capacity to exit the arrangement with its borders intact. Support for that position might be drawn from
leading SFRY jurist Edvard Kardelj’s Socialist-era understanding of self-determination in the Yugoslav context. For
Kardelj, “the legitimacy of Yugoslavia [was] only derivative and tentative”—a mere epiphenomenon of the
socialist project that subsequently disappeared. Zoran Oklopcic, Beyond Empty, Conservative, and Ethereal:
Pluralist Self-Determination and a Peripheral Political Imaginary, 26 LEIDEN J. INT’L L. 509, 518–19 (2013). Yet
Kardelj‘s conception—however popular with his fellow Slovenes—did not have the field to itself. More
importantly, there was still less accord on the alternative. As Oklopcic indicates, “While all Yugoslav constitutions
affirmed the various nations’ right to self-determination, including the right of secession, a fundamental
ambiguity remained as to whom exactly this right belonged—to South-Slavic Yugoslav ethnoi, or the demoi of
Yugoslavia’s component republics.” Id. at 520. The distinction, while appearing to set an ethnic against a civic
brand of nationalism, in reality merely determines which ethno-national aspirations will be satisfied or frustrated
once secessionism seizes the agenda.
58
Serb nationalists would likely express the point in a one-word rejoinder: “Jasenovac,” the concentration camp
in the World War II-era Independent State of Croatia (NDH)—an entity that encompassed roughly the combined
territories of present-day Croatia and Bosnia-Herzegovina—in which an extraordinary number of Serbs perished
(along with Jews, Roma, and others). See JASENOVAC MEMORIAL SITE, List of Individual Victims of Jasenovac
Concentration Camp, http://www.jusp-jasenovac.hr/Default.aspx?sid=6711.
crisis of federal institutions (which ordinarily would call for non-interference); there had
been, in effect, an undemocratic coup d’état, and further, a coup d’état that constituted a
hijacking of multinational Yugoslavia by a plurality (but not majority) ethno-national
movement. Milošević’s Yugoslavia could not be perceived to represent the self-
determination of “the whole people . . . without distinction.” Moreover, the Serb
minority’s “recourse to force” in Croatia (and later, in Bosnia-Herzegovina), which might
conceivably have been regarded as a defensive effort to forestall majority domination, was
not so regarded, because of the actual character of the violence on the ground. Whatever
the ideological neutrality of the post-decolonization UN peace and security order, the UN
system’s neutrality had never extended to the Axis-era fascism of which the Serb
59
nationalist movement appeared reminiscent, in both rhetoric and behavior.
The Badinter Commission’s real assessment, albeit operating beneath the surface, was
undoubtedly a substantive assessment of the relative justness of the contending
communities’ recourse to force. The Commission took sides in the conflict, not by neutral
application of procedural norms, but in an effort to thwart the Serb nationalist cause.
Although reflecting normative considerations embedded in the foundations of the
international order—as evidenced by the international community’s swift action to follow
60
the Commission’s lead in according recognition to the emergent states —the judgments
were ad hoc, neither reflective of existing legal doctrines nor generative of new ones likely
to be applied going forward.
II. Kosovo Independence: Deciding Not to Decide the Remedial Secession Question
On 17 February 2008, after almost nine years of limbo as a de facto UN protectorate,

Serbia’s erstwhile autonomous province of Kosovo—as represented by the full
membership of the Assembly set up as part of the UN-orchestrated “Provisional
61
Institutions of Self-Government of Kosovo” (PISG)—unilaterally declared independence.
Although substantial parts of the international community continue to withhold official
recognition—including, notably, European Union members Cyprus, Greece, Romania,
Slovakia, and Spain, as well as such leading non-European states as Brazil, China, India,
Mexico, Russia, and South Africa—108 UN member states have officially recognized
Kosovo. This qualified success is very rare in cases where a territory seeking separation
59
See, e.g., ROBERT O. PAXTON, THE ANATOMY OF FASCISM 189–90 (2004) (“[P]inning the epithet of fascist on
Milosevic . . . seems appropriate”).
60
Ironically, while the Commission’s early judgments sought to establish the legal status of the entities in
question, the Commission advised the withholding of diplomatic recognition to Croatia, pending reform of its
legal standards regarding the treatment of minorities. Contrast Badinter Commission Opinions, supra note 19, at
1503, 1505, No. 5, with id. at 1507, 1517, No. 7. However, the crucial question of legal status having been taken
as resolved, this further advice was ignored.
61
Kosovo Advisory Opinion, supra note 8, paras. 74–76.
does not (by whatever means) obtain the consent of the non-dissolved state to which it
62
has theretofore been integral.
The Kosovo case naturally raises the issue of “remedial secession”: whether a state may
forfeit its sovereignty over an integral territorial unit within which it has engaged in a
pattern of prolonged and serious human rights abuses. The Milosevic government’s 1989
withdrawal of Kosovo’s autonomy and the ensuing pattern of harsh discrimination against
the province’s large majority (over eighty-five percent) of ethnic Albanians precipitated a
serious crisis by the late 1990s, as an ethnic-Albanian insurgency was met by ever more
63
ruthless counterinsurgent efforts. After the Federal Republic of Yugoslavia (Serbia and
Montenegro) (FRY) rebuffed Security Council demands that it desist from its norm-
64
offending actions in that territory and refused to accede to the comprehensive solution
65
proposed by Western powers in the Rambouillet “accords,” the Security Council
deadlocked on the question of forcible imposition, setting the stage for the famously
66
unauthorized seventy-nine-day NATO air campaign. Although the Security Council never
affirmed the lawfulness of the NATO intervention, it adopted that intervention’s fruits in
Resolution 1244, precluding the FRY’s exercise of territorial control and placing Kosovo
67
under, in effect, an international trusteeship.
Resolution 1244, “Reaffirming the commitment of all Member States to the sovereignty
and territorial integrity of the Federal Republic of Yugoslavia,” purported to operate
without prejudice to Kosovo’s formal status as an integral part of the FRY (succeeded by
Serbia following the 2006 negotiated independence of Montenegro) pending a negotiated
68
settlement. Yet the negotiation process dragged on in manifest futility, with Serbia
62
Non-Self-Governing Territories are, by definition, non-integral to the sovereign states that govern them. See,
e.g., G.A. Res. 1541 (XV), supra note 4.
63
See generally INDEPENDENT INTERNATIONAL COMMISSION ON KOSOVO, THE KOSOVO REPORT: CONFLICT, INTERNATIONAL
RESPONSE, LESSONS LEARNED (2000) (“Goldstone Commission Report”).
64
See S.C. Res. 1160 (Mar. 31, 1998); S.C. Res. 1199 (Sept. 23, 1998); S.C. Res. 1203 (Oct. 24, 1998) (invoking
Chapter VII powers in addressing the Kosovo situation).
65
Interim Agreement for Peace and Self-Government in Kosovo (Feb. 23, 1999),
http://peacemaker.un.org/sites/peacemaker.un.org/files/990123_RambouilletAccord.pdf [hereinafter
Rambouillet Accords].
66
See Press Release, Security Council, U.N. Press Release SC/6659 (Mar. 26, 1999) (reflecting that Russia, China,
and Namibia support draft Security Council resolution, defeated 3-12-0, characterizing NATO’s “unilateral use of
force” as “a flagrant violation of the United Nations Charter” and demanding “an immediate cessation”).
67
S.C. Res. 1244 (June 10, 1999) (demonstrating a vote of 14-0-1, with China abstaining).
68
See id. The Resolution speaks of “the people of Kosovo” enjoying “substantial autonomy within the Federal
Republic of Yugoslavia. Id. at para. 10. It also speaks of “[p]romoting the establishment, pending a final
settlement, of substantial autonomy and self-government in Kosovo, taking full account of annex 2 and of the
Rambouillet accords.” Id. at para. 11(a). The annex, in turn, discusses a “political process towards the
unwilling to yield formal sovereignty and the Kosovars unwilling to accept anything less
than full independence. Meanwhile, the indefinite perpetuation of provisional
arrangements was widely perceived to impede the territory’s economic and social
69
development.
Thus arose the Kosovars’ Unilateral Declaration of Independence (UDI) and Serbia’s
ensuing request to the UN General Assembly—approved by a vote of seventy-seven to six,
with seventy-four abstentions—for an ICJ Advisory Opinion on the following question: “Is
the Unilateral Declaration of Independence by the Provisional Institutions of Self-
70
Government of Kosovo in accordance with international law?” Remarkably, the
71
resolution did not speak of the “legal consequences” of the UDI, thereby omitting
expressly to oblige the Court to address the legal status of Kosovo and the legality of
recognitions that foreign states had already conferred (forty-eight of them by the date of
72
the resolution, and sixty-nine by the date of the issuance of the Advisory Opinion).
Serbia’s formulation appears to have been a studied effort to avoid a diplomatic affront to
states that had already recognized Kosovo, while at the same time indirectly to induce the
Court to speak to the declaration’s overall implications. That effort appears, in retrospect,
to have been too clever.
By the operation of traditional doctrine, there is a blanket answer to the question of

whether any UDI is “in accordance with international law.” Apart from cases in which the
declarations are intertwined with extrinsic violations of international legal norms (such as
establishment of an interim political framework agreement providing for substantial self-government for Kosovo,
taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the
Federal Republic of Yugoslavia.” U.N. Doc. S/1999/648, Annex 2, para. 8 (June 7, 1999). The Rambouillet
document itself provides that “national communities” therein recognized “shall not use their additional rights to
endanger . . . the sovereignty and territorial integrity of the Federal Republic of Yugoslavia.” Rambouillet Accords,
supra note 65, at Framework, Art. 1(2).
69
In 2007, the U.N. Secretary-General’s Special Envoy, former Finnish President Martti Ahtisaari, authored a
Comprehensive Proposal for Kosovo Status Settlement, expressing the unsatisfactoriness of preserving the status
quo indefinitely. Comprehensive Proposal for Kosovo Status Settlement (Mar. 26, 2007),
http://www.unosek.org/docref/Comprehensive_proposal-english.pdf; see generally Jean d’Aspremont,
Regulating Statehood: The Kosovo Status Settlement, 20 LEIDEN J. INT’L L. 649 (2007).
70
G.A. Res. 63/3 (Oct. 8, 2008).
71
Cf., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
2004 I.C.J. Rep. 36 (July 9).
72
The resolution was passed on 8 October 2008. The dates of recognitions of Kosovo can be found, inter alia, on
the webpage of the KOSOVO’S MINISTRY OF FOREIGN AFFAIRS, http://www.mfa-ks.net/?page=2,33 (last visited June 18,
2015).
resistance to decolonization or a foreign state’s inadmissible use of force), a UDI per se is

73
not subject to international legal regulation.
The international legal order traditionally seeks neither to reinforce nor to undermine state
control over internally disputed territory (notwithstanding its concern with human rights
issues relating to these disputes and with humanitarian law issues relating to the internal
armed conflicts that the disputes occasion). It regulates external involvement in secession
74
disputes, but it presumptively neither forbids nor validates internal efforts at secession.
Historically, secessionists have assumed the risk of forcible suppression (subject to the
constraints of human rights and humanitarian law) and, where successful by their own
efforts (without inadmissible foreign assistance) have reaped the reward of international
75
recognition. The non-regulation of such efforts has not been a mere omission or gap in
the law; the consignment of such matters to the domestic jurisdiction has constituted an
affirmative norm of the international order. International law ascribes legal consequences
to the internal developments as they play out, but the internal decisions to reaffirm or to
repudiate the political status quo have traditionally been understood to fall within a
76
domaine réservé.
Thus, the phrasing of the question gave the Court an opportunity to give an answer—that
the UDI did not violate international law—that left open the central legal controversies.
Given the absence of a coherent collective opinio juris—as reflected in the clashing
memorials that governments from around the world submitted—the Court would have
73
As the Court noted, the “illegality attached to the declarations of independence [of Southern Rhodesia,
Northern Cyprus, and Republika Srpska] stemmed not from the unilateral character of these declarations as such,
but from the fact that they were, or would have been, connected with the unlawful use of force or other
egregious violations of norms of general international law, in particular those of a peremptory character (jus
cogens).” Kosovo Advisory Opinion, supra note 8, para. 81.
74
In the Court’s words, “[T]he scope of the principle of territorial integrity is confined to the sphere of relations
between States.” Kosovo Advisory Opinion, supra note 8, para. 80.
75
See, e.g., Reference re Secession of Quebec, [1998] S.C.R. 217, 290, para. 144 (Can.), http://scc-
csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do (“It may be that a unilateral secession by Quebec would
eventually be accorded legal status by Canada and other states, and thus give rise to legal consequences; but this
does not support the more radical contention that subsequent recognition of a state of affairs brought about by a
unilateral declaration of independence could be taken to mean that secession was achieved under colour of a
legal right.”).
76
Judge Simma’s separate opinion ascribes the Court’s presumptive neutrality to “an old, tired view of
international law, which takes the adage, famously expressed in the ‘Lotus’ Judgment, according to which
restrictions on the independence of States cannot be presumed because of the consensual nature of the
international legal order.” Kosovo Advisory Opinion, supra note 8, para. 2 (separate opinion by Simma, J.). Apart
from failing to note that the supposed “Lotus principle” by its nature has no application to sub-state units,
Simma’s ascription misconstrues the doctrinal point: The non-judgmentalism stems not from absence of law, but
from an affirmative norm regarding (for better or worse) the outcome of such struggles as “matters essentially
within the domestic jurisdiction.” See Friendly Relations Declaration, supra note 5.
77
had little basis for an authoritative answer. The question’s wording spared the Court the
embarrassment of having to declare as non liquet issues of which it was unequivocally
seised.
Unfortunately, however, in order to perform this dodge, the Court had to make a rather
dubious move, asserting—in what amounts to a disguised tautology—that the declarant
body, though established as part of the Provisional Institutions of Self-Government of
Kosovo under Security Council Resolution 1244, was acting in a different—and yet
78
somehow, not wrongfully ultra vires—capacity. The Court characterizes the declarants as
acting “together in their capacity as representatives of the people of Kosovo outside the
79
framework of the interim administration.” But since the Security Council’s intervention to
bar Serbia’s exercise of police power in the territory was the sine qua non of all of the
Kosovo Assembly’s activities (within or without “the framework of the interim
administration”) and since the intervention’s mandate forbade prejudice to Serbia’s
territorial integrity, the Security Council thereby undertook a commitment to avoid
allowing the Kosovars to exploit the intervention for secessionist purposes—a commitment
that can be presumed to have been indispensable to Russian support for, and Chinese
acquiescence in, the authorization of the Mission as a whole.
Having occurred under UN protection, the Kosovars’ proclamation of independence fell

beyond the bounds of the norm that would have entitled it to be regarded with neutrality.
Thus, the Court could not justly spare itself the burden of determining whether the
180
Kosovars had an international legal entitlement, under a doctrine of remedial secession,
to effect independence.
77
See Kosovo Advisory Opinion, supra note 8, para. 82 (showing that states have expressed “radically different
views” on the doctrinal issues central to determining Kosovo’s status: (1) “Whether, outside the context of non-
self-governing territories and peoples subject to alien subjugation, domination, and exploitation, the international
law of self-determination of peoples confers upon part of the population of an existing State a right to separate
from that state”; (2) “whether international law provides for a right of ‘remedial secession’ and, if so, in what
circumstances”; and (3) “whether the circumstances which some participants maintained would give rise to a
right of ‘remedial secession’ were actually present in Kosovo”).
78
See Kosovo Advisory Opinion, supra note 8, paras. 102–09.
79
Id. at para. 109. To infer any legal conclusions about Kosovar “peoplehood” on this basis would be to overread
what Zoran Oklopcic properly calls “a seemingly off-the-cuff remark.” Zoran Oklopcic, Preliminary Thoughts on the
Kosovo Opinion, EJIL: TALK! (July 26, 2010), http://www.ejiltalk.org/preliminary-thoughts-on-the-kosovo-
opinion/#more-2505. The use of that the term “people” may refer merely to the declarants’ subjective
understanding of their “capacity.” Id.
80
For arguments in favor, see the Statement of Federal Republic of Germany filed with the International Court of
Justice in connection with the Kosovo Advisory Proceedings, at 34–37, available at http://www.icj-
cij.org/docket/files/141/15624.pdf. See also Written Statements of Albania, Estonia, Poland, and Ireland,
available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=1. But see,
e.g., Written Statements of Cyprus, Spain, and the Russian Federation. For a study of these submissions, see
Marko Milanovic, Arguing the Kosovo Case, in THE LAW AND POLITICS OF THE KOSOVO ADVISORY OPINION (Marko
Nonetheless, the ICJ can scarcely be blamed for the sleight of hand, any more than the
Badinter Commission can be blamed for its pretense that its findings on Croatian and
Bosnian statehood followed from the application of established legal norms. In both
instances, hyper-formalism furnished an opportunity to defer authoritative consideration
of questions that are, in the collective opinio juris of states, fundamentally unsettled. In
both instances, the apparently predominant moral reaction of the international
community to the particular cases was allowed to prevail without any acknowledged
alteration to existing doctrine. And in both instances, perhaps not coincidentally, the losers
were Serbs, whose legal interests—whether or not otherwise worthy—effectively incurred
a penalty for transgressions committed in the name of the Serb nation that, even if
doctrinally immaterial, had poisoned the well.
D. Self-Determination of Peoples in a Pluralist Global Order
As noted at the outset above, self-determination plays a paradoxical role in the

international legal order. That concept establishes the very foundation of the system’s
operative norms: The UN Charter is notionally established by the “Peoples” of the member
states through their “respective Governments,” and its premier “Principle”—the
“sovereign equality” of states (Article 2(1)), from which is deduced the system’s default
peace and security norms—is grounded in the “purpose” of developing “friendly relations
among nations based on respect for the principle of equal rights and self-determination of
peoples” (Article 1(2)). Precisely because this is transparent hypocrisy—precisely because
the effective authority of governmental apparatuses is being rationalized as a
manifestation of the will of respective peoples in the absence of the slightest indication of
accountability—self-determination’s role in the content of operative norms is necessarily
81
indirect. As La Rochefoucauld teaches, “Hypocrisy is the tribute that vice pays to virtue.”
A system nominally predicated on the principle of self-determination is constrained to
produce operative norms that can be rationalized as manifesting that consideration, even
while that system functions in practice as a working arrangement among participants who
owe their standing more to their control over than to approval by the “peoples” that they
presume to represent.
Milanovic & Michael Wood eds., 2014), http://ssrn.com/abstract=2412219. As Milanovic reports: “Perhaps the
most remarkable item from the first round is that one state in the pro-Serbia camp did explicitly endorse the right
to remedial secession—Russia—while claiming that Kosovo did not satisfy its requirements on the facts. It was
indeed the only member of the P-5 to do so.” Id. at 25.
81
JEREMY LOTT, IN DEFENSE OF HYPOCRISY 60 (2006).
I. Self-Determination in Colonial Territories and Integral Territories
In 1960, the UN General Assembly authoritatively reinterpreted the self-determination

principle as applied to the “Non-Self-Governing Territories” previously accommodated by
Article 73, thereby expiating the UN system’s “original sin” of acquiescence in
82
colonialism. The Declaration on the Granting of Independence to Colonial Countries and
Peoples affirmed that “[a]ll peoples have the right to self-determination; by virtue of that
right they freely determine their political status and freely pursue their economic, social,
83
and cultural development.” There was no ambiguity about what it meant for peoples to
“freely determine their political status” in Trust and Non-Self-Governing Territories:
“immediate steps” were to be taken “to transfer all powers to the peoples of those
84
territories.” An accompanying resolution, aimed at the stubborn Portuguese insistence
on the integral nature of overseas territories that were “known to be of the colonial type,”
defined as Non-Self-Governing any “territory which is geographically separate and is
distinct ethnically and/or culturally from the country administering it” and which is subject
to “administrative, political, juridical, economic, or historical” factors that “arbitrarily place
85
it in a position or status of subordination.” Territorial populations could decline the
independence option in favor of “Free association with an independent State” or
“Integration with an independent State,” but only after clearing procedural hurdles
86
designed to verify the authenticity of the decision to forsake independence.
The Charter and the decolonization resolutions left unclear whether a “people” was
implicitly defined as the whole territorial population of any given state or Trust or Non-
87
Self-Governing Territory. There was perfect clarity, however, about the inadmissibility of
any invocation of the self-determination principle in aid of external efforts to fragment
either existing sovereign states or entities entitled to an option of sovereignty: “Any
attempt aimed at the partial or total disruption of the national unity and the territorial
integrity of a country is incompatible with the purposes and principles of the Charter of the
82
See generally W. OFUATEY-KODJOE, THE PRINCIPLE OF SELF-DETERMINATION IN INTERNATIONAL LAW (1977).
83
G.A. Res. 1514 (XV), supra note 4, at para. 2. The Security Council reaffirmed the statement in S.C. Res. 183,
paragraph 4 (Dec. 11, 1963), and the language is repeated verbatim in Common Article 1 of the 1966 Human
Rights Covenants. ICCPR, supra note 2, art. 1. International Covenant on Economic, Social and Cultural Rights, Jan.
3, 1976, 993 U.N.T.S. 3, art. 1.
84
G.A. Res. 1514 (XV), supra note 4, at para. 5.
85
G.A. Res. 1541 (XV), supra note 4, Annex, Principles I, IV, V.
86
See id. at Principles II, VI VII, VIII, IX.
87
Id. (containing at some points plural references (e.g., “the territory and its peoples”) thereby implying that a
single Non-Self-Governing Territory can contain more than one people, though this plurality is given no operative
significance).
88
United Nations.” This point is reiterated in the 1970 Friendly Relations Declaration,
though in a curious way:
Nothing in the foregoing paragraphs shall be construed

as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent
States conducting themselves in compliance with the
principle of equal rights and self-determination of
peoples as described above and thus possessed of a
government representing the whole people belonging
to the territory without distinction as to race, creed or
89
color.
On the one hand, this “safeguard clause” must be understood in the decolonization
context; it was written to encompass Rhodesia and South Africa, where the “subjection of
peoples to alien subjugation, domination, and exploitation” was intra-territorial. The
qualifying language evinced no intent to extend the right of populations to sovereign
independence beyond the role of corrective to colonialism and its vestiges; the widest
variety of authoritarian and ethnically unbalanced regimes, “representing” their
populations within the terms established by their prevailing ideologies, were intended to
90
pass this test.
On the other hand, the safeguard clause is the UN system’s most revealing authoritative
statement of the rationale on which the territorial integrity norm hinges. (Moreover,
subsequent iterations have broadened the last clause of the qualifier to speak of “a
91
government representing the whole people . . . without distinction of any kind.”) The
animating rationale inevitably suggests, however abstractly, some threshold at which it
would be admissible to “dismember or impair, totally or in part, the territorial integrity or
92
political unity of sovereign and independent States;” being a statement of general
principle, it further suggests that vestiges of Western European “salt water colonialism”
cannot be for all time unique in meeting this threshold.
88
G.A. Res. 1514 (XV), supra note 4, at para. 6.
89
Friendly Relations Declaration, supra note 5 (emphasis added).
90
See, e.g., ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 115–18 (1995) (discussing the
preparatory work to the safeguard clause, which reveals concessions to non-liberal-democratic states).
91
See G.A. Res. 50/6, supra note 7; United Nations World Conference on Human Rights, Vienna Declaration and
Programme of Action, supra note 7.
92
Friendly Relations Declaration, supra note 5.
Thus, however open-textured the interpretation of governmental conduct “in compliance

with the principle of equal rights and self-determination of peoples,” the doctrine’s
foundations cannot altogether preclude the possibility of a legal justification for external
assistance to secession. Moreover, the extent of the international order’s tolerance for
heterogeneity of internal governing arrangements has not remained frozen. The dynamic
nature of what I have elsewhere termed “bounded pluralism” is reflected in the very fact
that what was once dignified as “population transfer” is now authoritatively abominated as
“ethnic cleansing”—conduct that authoritative documents have, however qualifiedly,
93
identified with forfeiture of sovereign prerogative. Even so, the international order, while
occasionally validating external action against a manifestly illegitimate effective
94 95
government, has rarely validated externally-sponsored fracturing of the territorial units.
II. Presumptive “Trial by Ordeal” and the Emerging Doctrine of “Remedial Secession”
Long after—and paradoxically, as a concomitant of—the collective renunciation of cross-

border uses of force, the international system continued to dignify the internal use of force
as a basis for setting the terms of territorial public order. The 1933 Montevideo
96
Convention —best read in conjunction with a contemporaneous Latin American treaty,
97
the 1929 Civil Strife Convention (an early articulation of the non-intervention norm) —and
93
G.A. Res. 60/1, para. 139 (Sept. 16, 2005) (affirming the Security Council’s authority to intervene forcibly in the
internal affairs of sovereign states, in furtherance of the “responsibility to protect,” where “national authorities
are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against
humanity”).
94
For example, coups in Haiti in 1994 and Sierra Leone in 1997 drew not only international condemnation, but
also continued recognition of the ousted government-in-exile, leading ultimately to a forcible restoration. In these
cases, there had been a landslide victory of the ousted President in a very recent, internationally-monitored
election, as well as notorious brutality and demonstrable unpopularity on the part of the forces involved in the
coup. As a result, a vast diversity of international actors, cutting across the international system’s plurality of
interests and values, were able to perceive in common a population’s manifest will to restore an ousted
government. See BRAD R. ROTH, GOVERNMENTAL ILLEGITIMACY IN INTERNATIONAL LAW 366–87, 405–09 (1999).
95
The establishment of Bangladesh as a result of India’s 1971 intervention in East Pakistan is a rare instance of
such fracturing. Even there, the initial U.N. General Assembly indirectly repudiated the external use of force that
enabled Bangladesh’s independence. G.A. Res. 2793 (XXVI) (Dec. 7, 1971) (calling “upon the Governments of India
and Pakistan to take forthwith all measures for an immediate cease-fire and withdrawal of their armed forces on
the territory of the other to their own side of the India-Pakistan borders”).
96
See Montevideo Convention, supra note 19.
97
Convention on Duties and Rights of States in the Event of Civil Strife, May 21, 1929, 134 L.N.T.S. 45, art. 1
(codifying an Inter-American treaty forbidding “the traffic in arms and war material, except when intended for the
Government, while the belligerency of the rebels has not been recognized, in which latter case the rules of
neutrality shall be applied”).
98
“the rule against premature recognition” were invoked to validate the outcome of any
contest untainted by inadmissible foreign assistance to separatist forces. States were
licensed to crush internal efforts at territorial fragmentation; only when they proved
confessedly unwilling or decisively unable to do so did they lose their legal claim to
territorial integrity.
In effect, independence forces demonstrated their legitimacy by winning a civil war against
the odds, odds made longer by the asymmetry of non-intervention norms, which imposed
an absolute ban only on assistance to the separatists. While not precluding secessionists
99
from taking their best shot, the doctrinal formula presumptively forbade external
100 101
assistance to local forces challenging —but not to local forces bolstering —the existing
territorial boundaries fixed at the inception of the current peace and security order.
Such a “trial by ordeal” doctrine is not as completely bereft of moral logic as it may initially
appear. External assistance to separatist forces has been a notorious means of both great
power predation and regional mischief. Moreover, however arbitrary state boundaries
may be, settled bases for reconfiguration tend to be elusive. Territories—whether of whole
states or of the entities for which secession is sought—frequently lack demographic
coherence (though such coherence can, as we have lately seen, be ruthlessly imposed).
Given the conundrum of delimiting political communities with inter-mixed populations and
overlapping historical claims, an alternative doctrine would be difficult to design.
98
See, e.g., MALCOLM SHAW, INTERNATIONAL LAW 383 (5th ed. 2003); HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL
LAW 45–46 (1947) (“[T]he sovereignty of the mother country is a legally relevant factor so long as it not
abundantly clear that the lawful government has lost all hope or abandoned all effort to reassert its dominion.”).
99
“Successful revolution sooner or later begets its own legality.” STANLEY A. DE SMITH, CONSTITUTIONAL AND
ADMINISTRATIVE LAW 66–67 (3d ed. 1977).
100
1981 Non-Intervention Declaration, supra note 6, Annex, art. 2(f) (affirming “[t]he duty of a state to refrain
from the promotion, encouragement, or support, direct or indirect, of rebellious or secessionist activities within
other States, under any pretext whatsoever, or any action which seems to disrupt the unity or to undermine or
subvert the political order of other States” (emphasis added)).
101
A complicated question arises when insurgent forces achieve such efficacy as to achieve the status of
“belligerent,” thereby establishing the existence of a full-fledged “civil war.” Since a government’s standing
traditionally hinges on its maintenance of effective control through internal processes, the inability of a regime to
maintain control by its own devices calls that standing into question, thereby arguably triggering an obligation of
foreign states to observe neutrality. See, e.g., Institut de Droit International, Resolution: The Principle of Non-
Intervention in Civil Wars (Aug. 14, 1975), http://www.idi-iil.org/idiE/resolutionsE/1975_wies_03_en.pdf; see
generally Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56
BRITISH Y.B. INT‘L L. 189 (1986). For a recent assessment of this issue, see Dapo Akande & Zachary Vermeer, The
Airstrikes Against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil
Wars, EJIL: TALK! (Feb. 2, 2015), http://www.ejiltalk.org/the-airstrikes-against-islamic-state-in-iraq-and-the-
alleged-prohibition-on-military-assistance-to-governments-in-civil-wars/ (last visited June 18, 2015).
An international validation of secessionism would risk incentivizing ethno-nationalist

mobilizations in majority-minority regions—which, inter alia, rarely augurs well for the
ethnic groups that are minorities within such regions. Such validation might even
incentivize local political entrepreneurs to commit acts calculated to provoke a ruthless
102
backlash, which could then be invoked to make a case for “remedial secession.” The
traditional rule is a harsh rule, but it is designed to avert scenarios that can be harsher still.
And yet, this “trial by ordeal” doctrine seems highly unsatisfactory in an international
system that purports to subject exercises of power to the rule of law. In an international
system in which statehood is rationalized as a manifestation of the self-determination of
“the whole people belonging to the territory without distinction,” there must be some
limit—even apart from the expressly designated contexts of “colonial domination, alien
occupation, and racist (apartheid) regimes”—to the domination that the international
order can rationalize.
Any narrow exception will be grounded neither in the inherent rights of an ethnically-
delimited political community nor in the “democratic” will of a population delimited by
such internal boundaries as a domestic political order may have established at a given
time. It will be grounded, rather, in the future-oriented concern that whereas statehood in
principle represents the self-determination of the territorial population as a whole going
forward, a particular existing delimitation may doom a territorially concentrated ethnic
minority to subordination and predation within an inalterably adverse political community.
Only such extreme circumstances might justify relaxation of a rule that is needed to pre-
empt endless controversy and bloodletting.
III. The Inapplicability of Self-Determination to Crimea and Eastern Ukraine
The implications for the Ukraine Crises of 2014–2015 are clear. Even if the Kosovo example
is taken to reflect the international community’s tacit acceptance of a principle of remedial
secession, such a principle would validate external assistance to secessionist efforts only
where the predations suffered by the territorially concentrated ethnic minority are so
grave and prolonged as to establish clearly the futility of any alternative that preserves the
territorial integrity of the existing state. Whatever merit may be ascribed to the Crimean
(and Donetsk and Luhansk) secessionists’ suspicions about the future behavior of the
newly established government in Kiev, no prima facie case has been made that the ethnic
Russian populations in Crimea and in Eastern Ukraine had actually been subjected to such
severe and long-term adverse treatment as to render their condition irremediable within
the context of the Ukrainian state.
102
See Zoran Oklopcic, Constitutional (Re)Vision: Sovereign Peoples, Constituent Powers and the Formation of
Constitutional Orders in the Balkans, 19 CONSTELLATIONS: INT’L J. CRITICAL & DEMOCRATIC THEORY 81, 95 (2012).
Still less does any effort to ascribe “peoplehood” to the populations of the regions—
whether on the basis of historical ties, ethnic linkages, pre-existing constitutional status, or
plebiscite—furnish Crimea or any other breakaway region with a lawful competence to
invite foreign support. Whereas a manifest deprivation of “virtual” representation might
establish a deprived community as a distinct “people” with an unsatisfied right to self-
determination, none of the recent developments in international law facilitate an
affirmative case that leads from the community’s inherent characteristics to a right to
aided secession. The self-determination principle is beset by the ineluctable reality that
most genuine affective communities lack the territorial coherence that would be needed
for the self-governance of those communities and only those communities. The territorial
political community is necessarily an artificial community, to the configuration of which its
103
disparate members need to be reconciled based on its functions going forward.
Nothing about the Russian-speaking fifty-eight percent of Crimea’s residents, or the

region’s seemingly arbitrary 1954 conferral from the Russian Soviet Federated Socialist
Republic to the Ukrainian Soviet Socialist Republic (a fellow unit of what was then a single
sovereign state for purposes of international law), or the special constitutional status of
Crimea within Ukraine, or even the ostensible desire of referendum voters to form an
independent polity establishes an international legal personality capable of vitiating
Ukraine’s right to territorial integrity. However doctrinally confused the international
response to the “non-consensual dissolution” of the Socialist Federal Republic of
Yugoslavia, it calculatedly produced no innovation that applies in any direct way beyond
the unique circumstances of that case.
E. Concluding Thought: The Dangers of Doctrinal Uncertainty Exceed Those of

Modification
The United Nations Charter-based international order has sought to reconcile the self-
determination of peoples with the inviolability of state boundaries by presuming sovereign
states to be manifestations of the self-determination of the entirety of their territorial
populations. This presumption, albeit notionally rebuttable, has traditionally prevailed
even where states could only by a feat of ideological imagination be characterized as
“possessed of a government representing the whole people belonging to the territory
without distinction.” But the international reaction to fragmentation in the former
Yugoslavia—regarding both the initial “dissolution” and the subsequent struggle over
Kosovo—has called into question the rigid doctrines of the past, and opened the door to
103
It is telling that the Canadian Supreme Court’s decision in Reference re Secession of Quebec, supra note 75,
perhaps the most elaborate contemporary judicial opinion anywhere on the topic, pointedly sidestepped the
question of what counts as a “people,” jumping ahead conceptually to the non-violation of self-determination.
The Court thus avoided having to determine whether the relevant “people” was comprised of (a) the entire
Quebec population, (b) the entire Quebec population minus the indigenous communities; (c) Francophone
Quebecois, or (d) all Francophone Canadians, let alone (e) all Canadians. Id. at 282, para. 125.
secessionist claims theretofore dismissible as beyond the pale. Although no vindication of

Russian intervention in Ukraine can properly be drawn from the Yugoslav cases, the
Ukrainian crises help to surface the hidden dangers of an emerging jurisprudence that
would allow heretofore inadmissible considerations—whether ethnic, historical,
constitutional, or “democratic”—to compromise the territorial inviolability norm.
Thus far, the international system has allowed only for implicit and unacknowledged
relaxations of its traditional resistance to external support for secession. Authoritative
legal actors, fearing the consequences of overt doctrinal change, have validated irregular
outcomes through well-intentioned exercises in intellectual dishonesty. But these exercises
work a long-term harm in undermining the principled foundations of legal constraint on
cross-border exertions of coercion and force. Rather than thwarting destabilizing
influences, the failure to articulate modifications to once-rigid standards merely invites the
invocation of partisan rationales based on principles—such as ethno-national coherence or
domestic constitutionality—that are alien to the structure of the international order. Such
principles, while often attractive in the context of domestic political orders, are incapable
of grounding a normative framework of peace and security in world beset by conflicting
interests and values—not to mention the former disguised as the latter.
It is not, however, necessarily fruitless to articulate doctrinal modifications that appeal to

the international community’s least-common-denominator moral sensibilities. The UN
Charter-based order, for all of its counterintuitive rigidities, is predicated not on an amoral
deal among effective ruling apparatuses, but on a moral vision that brackets ideological
difference while insisting on an expandable (and demonstrably expanding) range of cross-
cutting imperative precepts. Whatever else it may contestably mean for a state to be
“possessed of a government representing the whole people belonging to the territory
without distinction,” no one can be heard to claim its compatibility with “ethnic cleansing.”
If the Yugoslav cases are not given an express narrow reading, the alternative is that they
will be exploited to destabilize the international order as a whole. Apologists for Russia’s
intervention in Ukraine are showing the way.
How to Uphold the Territorial Integrity of Ukraine
By Mikulas Fabry*
Abstract
Russia’s absorption of Crimea violated the norm of territorial integrity, which protects
states against involuntary loss of territory to other states. This article addresses two
different arguments on how to deal with this violation: (1) That Ukraine lost Crimea for
good and that this should be acknowledged, both politically and legally, if one seeks to
forestall forcible change of interstate boundaries elsewhere; and (2) that third party
countermeasures against Russia can roll back its territorial gains in Ukraine, but only if they
are much more materially robust than they have been so far. While mutually incompatible,
the arguments raise an important issue—how to uphold international legal norms in
particular situations—an issue to which scholars of international law do not pay much
detailed attention. Yet doing so is important because international legal norms leave
governments with wider decision-making discretion than is commonly presumed, and
different ways of upholding a norm are predisposed to generate different effects, including
legal effects. Having examined the two approaches, the article ar gues that the best way to
uphold the territorial integrity of Ukraine is by staking a middle ground between them,
placing emphasis on the policy of non-recognition.
A. Introduction
Russia’s absorption of the “Republic of Crimea” into its federal structure on 18 March 2014
constituted the first forcible incorporation of a territory across interstate boundaries in
Europe since the end of World War II. It is, therefore, not surprising that many foreign
governments, along with various segments of their popul ation, reacted with alarm to this
move. They saw it as a grave violation of one of the cardinal norms of international
relations and law—that of territorial integrity—which protects states against involuntary
1
loss of territory to other states. Strong public denunciations and diplomatic and economic
sanctions that followed have not, however, made the Russian government reconsider its
decision. Indeed, Russia subsequently intervened in other regions of Ukraine, two of
which—Donetsk and Luhansk—declared their independence and desire to integrate with
*
Georgia Institute of Technology. E-mail: mfabry@gatech.edu.
1
See generally Mark W. Zacher, The Territorial Integrity Norm: International Boundaries and the Use of Force, 55
INT’L ORG. 215 (2001) (enumerating the norm of territorial integrity).
2015 How to Uphold the Territorial Integrity 417
Russia in April. The inability to stop and reverse Russian exploits in Ukraine has generated a
torrent of commentary. Two different arguments made by observers are addressed here:
(1) That Ukraine lost Crimea for good, irrespective of any conceivable action third parties
may choose to undertake, and that this must be acknowledged, both politically and legally,
if one seeks to forestall forcible change of interstate boundaries elsewhere; and (2) that
third party countermeasures against Russia can roll back Russia’s territorial gains in
Ukraine, but to be effective they must be much more materially robust than they have
been so far.
While mutually incompatible, both arguments are concerned with preserving the norm of
territorial integrity as such. Consciously or not, their proponents raise an important issue:
How to uphold international legal norms in particular situations. Scholars of international
law tend not to pay detailed attention to this issue, even in cases of serious violations by
powerful states; they are often content to limit case analysis to ascertaining the substance
of the pertinent norms. Yet doing so is important because international legal norms leave
governments with wider decision-making discretion than is commonly presumed, and
different ways of upholding a norm are predisposed to generate different effects —
including legal effects—within, and on, the rule-based international system.
This article examines the question of how to uphold the norm of territorial integrity in the
Ukrainian case. It argues that the best way to do so is by staking a middle ground between
the accommodationist and hawkish approaches towards Russia. Specifically, I highlight the
importance of non-recognition, one of the countermeasures widely adopted in the
Crimean case, which entails the refusal to admit the lawfulness of an actual or projected
alteration in legal status, capacity, or rights. Both approaches presume ineffectiveness of
this diplomatic instrument. Yet, I demonstrate that non-recognition of illegally acquired
territories, for all its inherent limitations, actually has a respectable history. Since 1945 —
with the relatively minor exception of colonial “enclaves”—no such acquisition has been
consolidated into an internationally valid title, even when engineered by a great power.
For that reason the accommodationist contention that Crimea is permanently Russian is
highly premature. Against the hawkish pos ition, this article suggests that more forceful
sanctions do not necessarily lead to desired outcomes. In fact, limited sanctions, even non -
recognition alone, have sometimes been sufficient in effecting a reversal of illegal
territorial situations, albeit usually over a lengthy period of time. Whereas particular
sanction designs are bound to generate disagreements and controversies, the guiding
principle ought to be a prudent balance in upholding a multiplicity of state responsibilities,
both international and national. This is all the more necessary when a great power such as
Russia is the target.
418 G e r m a n L a w J o u rn a l Vol. 16 No. 03
B. Russia’s Forcible Incorporation of Crimea
The facts of what occurred in Ukraine in February and March 2014 are less disputed today
than they were at the time of their occurrence. Following a highly contested change of
government in Kiev on 22 February, Russia’s military forces, as later admitted publicly by
President Putin on several occasions, deployed to take control over military, governmental,
and transportation installations throughout the Crimean peninsula. New authorities in Kiev
2
denounced this action, which began on 27 February, as an “illegal entry.” With Russian
troops surrounding the autonomous parliament and other key public buildings, politi cians
of a pro-Russian party captured control of the Crimean autonomous government, and
hastily organized a declaration of Crimean independence from Ukraine and unification with
3
Russia on 11 March. The politicians held a referendum to approve the move on 16 March.
On 17 March, following the 96.8% approval of the unilateral secession, Russia recognized
4 5
the “Republic of Crimea” as an independent state. Having agreed to the petition for
accession to the Russian Federation, the Russian government then, equal ly swiftly, signed
6
an “interstate treaty” with the “Republic of Crimea” to that effect on 18 March. The upper
chamber of the Russian legislature ratified the treaty on 21 March.
Russia employed several arguments to justify its actions. It defended its involvement in
Crimea, and later in eastern Ukraine, by the need to protect human rights of Russian
citizens and “compatriots” in the wake of what it considered an anti -constitutional seizure
of power by anti-Russian groups in Kiev. Russia alluded to the right to protect a state’s
7
nationals abroad and invoked the 1983 United States’ military intervention in Grenada. It
claimed to have received invitations to intervene by President Yanukovich —whose
legitimacy it continued to recognize, and whose letter it produced at the United Nations
2
See U.N. SCOR, 69th Sess., 7124th mtg. at 3, U.N. Doc. S/PV.7124 (Mar. 1, 2014) (statement of Ukraine).
3
See Declaration of Independence of the Autonomous Republic of Crimea and Sevastopol , THE STATE COUNCIL OF THE
REPUBLIC OF CRIMEA (Mar. 11, 2014), http://www.rada.crimea.ua/news/11_03_2014_1 (declaring Crimean
independence from Ukraine and unification wi th Russia).
4
This entity was proclaimed in the March 11 declaration as consisting of the Autonomous Republic of Crimea and
the city of Sevastopol, which had a separate status in Ukraine.
5
See Executive Order on Recognizing Republic of Crimea, PRESIDENT OF RUSSIA (Mar. 17, 2014),
http://en.kremlin.ru/events/president/news/20596.
6
See Agreement on the Accession of the Republic of Crimea to the Russian Federation Signed , PRESIDENT OF RUSSIA
(Mar. 18, 2014), http://en.kremlin.ru/events/president/news/20604 .
7
See U.N. SCOR, 69th Sess., 7125th mtg. at 3 and 10, U.N. Doc. S/PV.7125 (Mar. 3, 2014) (statements of the
Russian Federation).
8 9
Security Council (UNSC) —and by the newly installed Crimean leadership. Once Ukrainian
authority on the peninsula was effectively quelled, Russia supported the notion of Crimean
independence as a justifiable, albeit “extraordinary,” response to the “legal vacuum”
10
created by the “violent coup” in Kiev, and then declared the 16 March referendum and
the request for accession to Russia to be a valid exercise of the right to self-determination
11
in international law. In support of its embrace of Crimea’s unilateral secession, Russia
also invoked: (1) The precedent of U.S.-led recognition of Kosovo’s unilateral secession—
just as it had done when it recognized Abkhazia and South Ossetia in 2008 —and (2) the
Kosovo (2010) advisory opinion of the International Court of Justice, which concluded that
12
unilateral declarations of independence do not, as such, violate international law.
While individual states always justify their actions by claiming adherence to existing
international norms—asserting either that (1) there is a compatibility with a previous
construction and relevant precedents of a norm, or (2) that there are compelling reasons
for an innovative interpretation based on the new, unique, or unusual circumstances of the
case or other pertinent moral and legal considerations —the authoritative judgment
whether this is so can hardly be theirs alone. Other states governed by these norms must
accept these justifications. Despite Russia’s attempts to make a plausible case, no state
openly endorsed its military intervention, and only a handful of countries publicly accepted
13
the 16 March referendum as a valid exercise of popular will, or formally recognized
14
Crimea’s incorporation into Russia. Most public reactions to Russia’s assertions were
markedly negative: States and numerous international organizations —the European Union
(EU), the Organization for Security and Cooperation in Europe (OSCE), the Group of Eight,
8
See Statement by the President of Ukraine, in Permanent Representative of the Russian Federation, Letter dated
Mar. 3, 2014 from the Permanent Representative of the Russian Federation to the United Nations addressed to
the Secretary-General, U.N. Doc. S/2014/146 (Mar. 3, 2014).
9
See S/PV.7124, supra note 2, at 5 (statement of the Russian Federation).
10
See U.N. SCOR, 69th Sess., 7134th mtg. at 15, U.N. Doc. S/PV.7134 (Mar. 13, 2014) (statement of the Russian
Federation).
11
See Address by President of the Russian Federation, in Permanent Representative of the Russian Federation,
Letter dated Mar. 19, 2014 from the Permanent Representative of the Russian Federation to the United Nations
addressed to the Secretary-General, annexed to U.N. Doc. A/68/803–S/2014/202 (Mar. 19 2014).
12
See Statement by the Russian Ministry of Foreign Affairs Regarding the Adoption of the Declaration of
Independence of the Autonomous Republic of Crimea and Sevastopol , THE MINISTRY OF FOREIGN AFFAIRS OF THE
RUSSIAN FED ’N (Mar. 11, 2014), http://www.mid.ru/brp_4.nsf/0/4751D80FE6F93D0344257C990062A08A. In the
UNSC debate on March 13, 2014, Russia also invoked the case of Mayotte, an island affirmed by the UNGA to be
part of the Comoros in 1975, but where France, as the withdrawing colonial power, nevertheless organized a
referendum in 1976 in which the residents voted to remain part of France. See S/PV.7134, supra note 10, at 16.
13
Afghanistan, Armenia, Kazakhstan, Kyrgyzstan, Nicaragua, and North Korea.
14
Afghanistan, Nicaragua, Syria, and Venezuela.
the North Atlantic Treaty Organization, and the Visegrad Group—rejected Russia’s use of
force, the Crimean referendum, and Crimea’s absorption into Russia. Outsiders, including
15
the United Nations (UN) and OSCE human rights representatives on the ground, denied
that there was, anywhere in Ukraine, any systematic or widespread persecution of the
Russian minority or speakers. As such, the protection and welfare of this group, consisting
overwhelmingly of Ukrainian citizens, was the responsibility of the Ukrainian, not Russian,
state. Critics of Russia pointed that the only body consti tutionally authorized to invite
foreign troops onto Ukrainian territory was the country’s parliament, and not its president
16
or autonomous entity. They construed the referendum in, and the transfer of, Crimea to
17
have been the result of invalid external mil itary force by Ukraine’s eastern neighbor
rather than genuine internal self-determination by the people of the peninsula, as Russia
18
claimed. They considered the transfer to be, in fact if not in formal designation, an
19
“annexation” and, as such, a grave violation of the norm of territorial integrity.
Following the sole negative vote by Russia that vetoed the UNSC draft resolution
20
reaffirming Ukraine’s internationally recognized boundaries, the UN General Assembly
(UNGA) adopted the almost identical Resolution 68/262, titled “Territorial Integrity of
15
See U.N. SCOR, 69th Sess., 7144th mtg. at 3–5, U.N. Doc. S/PV.7144 (Mar. 19, 2014) (statement by Ivan
Šimonović, Assistant Secretary-General for Human Rights).
16
See S/PV.7125, supra note 7, at 5 (statement of the United States of America).
17
See S/PV.7134, supra note 10, at 7–8 (statement of the United Kingdom).
18
See Statement by the Russian Ministry of Foreign Affairs Regarding Accusations of Russia’s Violation of its
Obligations Under the Budapest Memorandum of 5 December 1994, THE MINISTRY OF FOREIGN AFFAIRS OF THE RUSSIAN
FED ’N (Apr. 1, 2014), http://www.mid.ru/brp_4.nsf/0/B173CC77483EDEB944257CAF004E64C1. Ironically, during
the Kosovo proceedings before the International Court of Justice, Russia argued that sub-state groups cannot
break away unilaterally from their parent states, including by invoking the right to self-determination, except in
conditions justifying remedial secession. These conditions should be:
[L]imited to truly extreme circumstances, such as an outright armed

attack by the parent state, threatening the very existence of people
in question. Otherwise all efforts should be taken in order to settle
the tension between the parent state and the ethnic community
concerned within the framework of the existence state.
By Russia’s own publicly articulated standards, the conditions for a justifiable unilateral secession of Crimea from
Ukraine were not met. See Written Statement of the Russian Federation (Kosovo) 2009 I.C.J. 31–32, ¶ 88 (Apr. 17,
2009).
19
See U.N. SCOR, 69th Sess., 7138th mtg. at 4, U.N. Doc. S/PV.7138 (Mar. 15, 2014) (statement of the United
States of America); see Council Conclusions on Ukraine, COUNCIL OF THE EUROPEAN UNION (Mar. 17, 2014),
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/141601.pdf; see also S/PV.7144,
supra note 15, at 6, 10–11, 13 and 15–17 (statements of Australia, France, Jordan, Lithuania, the Republic of
Korea, and the United Kingdom).
20
S.C. Draft Res., U.N. Doc. S/2014/189 (Mar. 15, 2014).
21
Ukraine.” The preamble recalled: Article 2 of the UN Charter, which obligates the UN
member states to refrain from threatening or using force against the territorial integrity
and political independence of any state and to settle any dispute peacefully; UNGA
Resolution 2625 (XXV), which stipulates that the territory of a state shall not be the object
of forcible acquisition by another state; the Helsinki Final Act (1975), in which Russia
guaranteed to respect the borders of other states in Europe; and the Budapest
Memorandum (1994), the Treaty of Friendship, Cooperation and Partnership between
Russia and Ukraine (1997), and the Alma -Ata Declaration (1991), in which Russia formally
acknowledged the former Soviet boundaries of Ukraine, with Crimea included. In the
operative section the resolution affirmed the internationally recognized boundaries of
22
Ukraine, declared the 16 March referendum to have no validity and to constitute no basis
for any alteration of the status of the Autonomous Republic of Crimea or of the city of
23
Sevastopol, and called upon all states, international organizations, and specialized
agencies not to recognize any such alteration and to refrain from any action or dealing that
24
might be interpreted as recognizing any such altered status.
Resolution 68/262 was adopted by one hundred votes to eleven, with fifty -eight
abstentions, but these numbers do not fully capture the extent of agreement with the
25
principles in the text. During the UNGA discussion on the resolution’s draft, several
delegations—Argentina, Botswana, Ecuador, Jamaica, Saint Vincent and the Grenadines,
and Uruguay—explicitly endorsed the resolution’s key stipulati ons but chose abstention
for other reasons. Indeed, Argentina, along with fellow abstainer Rwanda, voted for the
UNSC draft resolution twelve days earlier. Additionally, China and Algeria abstained, but
26
voiced their general support for the territorial integrity of Ukraine. In any case, with the
sole exception of North Korea, no statement made in the UNGA session on Resolution
68/262 openly supported Russian actions or their justifications. Intriguingly, Belarus, which
voted against the text and whose presi dent initially appeared to support Russia, later
voiced disapproval of the Russian takeover of Crimea.
Public rebukes and widespread support for non-recognition of Crimea’s altered status
were coupled with an evolving regime of diplomatic and economic sanctions against Russia
by individual states and international organizations, including the United States, Canada,
21
G.A. Res. 68/262, U.N. doc. A/RES/68/262 (Mar. 27, 2014).
22
Id. at ¶ 1.
23
Id. at ¶ 5.
24
Id. at ¶ 6.
25
See U.N. GAOR, 68th Sess., 80th plen. mtg. at 1, U.N. Doc. A/68/PV.80 (Mar. 27, 2014).
26
China also did so on several occasions in UNSC debates. See S/PV.7138, supra note 19, at 7 (statement of
China); see also S/PV. 7144, supra note 15, at 14 (statement of China).
Australia, Japan, and the EU. Despite this broadly negative reaction to its actions, however,
the Russian leadership showed no inclination to retreat from Crimea. In fact, it shortly
opted for active backing of pro-Russian separatists in eastern Ukraine’s Donetsk and
Luhansk regions, all the while continuing to insist—as it had done with respect to Crimea
only to later admit otherwise—that it had no direct or indirect military involvement in
those areas.
The outside inability to promptly affect Russian conduct vis-à-vis Ukraine’s territory has
spawned a debate about long-term policy towards Crimea and eastern Ukraine. Some
observers have concluded that, given what the outside world has done—and is conceivably
prepared to do—for Ukraine, it is difficult to envision how Russia can be dislodged from
Crimea. In such circumstances, an international settlement that would allocate Russia,
27 28
whether directly or following a newly negotiated referendum with external monitors,
the evidently heavily pro-Russian peninsula would satisfy Russia and keep it from engaging
in further legally and politically dubious actions in the former Soviet space. William Burke-
29
White puts it bluntly: “Crimea is Russia’s.” He argues that “Russia has not only secured
the territory on its own,” but also its legal arguments concerning territorial integrity, self-
30
determination, and the use of force “set a precedent of lasting signific ance.” In his view,
external actors can, at most, seek to check the precedential impact of Russia’s legal
interpretations for other situations, not least for those who voted against, abstained, or
31
did not vote on UNGA Resolution 68/262. Concentrating more on the future of former
Soviet republics than the international legal system, Stephen Kotkin proposes —in light of
32
the sanctions that have not compelled Russia to fundamentally reverse its course —
negotiations, the goal of which would be, “first, to excha nge international recognition of
Russia’s annexation of Crimea for an end to all the frozen conflicts in which Russia is an
33
accomplice and, second, to disincentivize such behavior in the future.” It should be
emphasized that while views advocating accepta nce of the annexation of Crimea differ in
focus—and they have been expressed or implied not just by academics but also by some
current and former European leaders, including those in Germany, Czech Republic,
Slovakia, and Hungary—they are at least partly motivated by a wish to avert circumstances
27
Stephen Kotkin, The Resistible Rise of Vladimir Putin, 94 FOREIGN AFFAIRS 140, 152 (2015).
28
Michael O’Hanlon & Jeremy Shapiro, Crafting a Win-Win-Win for Russia, Ukraine and the West, WASH . POST
(Dec. 7, 2014), http://www.washingtonpost.com/opinions/crafting-a-win-win-win-for-russia-ukraine-and-the-
west/2014/12/05/727d6c92-7be1-11e4-9a27-6fdbc612bff8_story.html.
29
William W. Burke-White, Crimea and the International Legal Order, 56 SURVIVAL 65, 65 (2014).
30
Id. at 74.
31
Id. at 74–78.
32
See Kotkin, supra note 27, at 153.
33
Id. at 152.
leading to Crimea-like developments in the future. They do not advocate an abandonment

of the norm of territorial integrity as such; on the contrary, they clearly hope that their
34
approach to the Ukrainian case woul d help preserve it beyond that case.
A more common belief is that the territorial fruits of Russia’s intervention in Ukraine can
be reversed, but only if more forceful policies against Russia are applied. This view has
been voiced by a variety of individuals, ranging from neoconservative and liberal
35 36
internationalist commentators, such as Jeremy Rabkin, Eliot Cohen, and Stewart
37
Patrick, to policymakers such as John McCain and Ukrainian, Polish, and Baltic political
leaders and analysts. Its proponents have worried that in the absence of vigorous
opposition to Russia, Russia’s and other revisionist governments may feel encouraged to
replicate the Ukrainian scenario elsewhere. Among the feared consequences of a weak
posture vis-à-vis Russia have been a global weakening of the norms guiding the use of
military force; the prohibition of forcible acquisition of foreign territory; the inviolability of
legally binding treaties setting interstate boundaries; and, given that Ukraine relinquished
the nuclear weapons on its territory in exchange for great power security and boundary
assurances in the Budapest Memorandum of 1994, the nuclear non-proliferation and
disarmament regime. Proposed countermeasures have included wholesale energy,
banking, and other sectoral s anctions; major military assistance, including weapons
supplies, to the Ukrainian armed forces; and the establishment of new permanent NATO
bases in NATO member states bordering Russia or other former Soviet republics.
This article agrees with both the accommodationist argument, that removing Russia from
Crimea is a tall order, and with the hawkish position that, if left uncontested, Russian
actions may have a host of harmful legal and political consequences, both regionally and
globally. Yet, there is a middle ground between formally conceding Crimea as part of
Russia and resorting to ever more forceful countermeasures in the hope that they will
make Russia leave Crimea and cease propping up the “Donetsk Peoples’ Republic” and the
“Luhansk People’s Republi c.” This third approach emphasizes non-recognition, a policy
which the two approaches assume either ignores reality or is woefully insufficient as a
34
This is not to suggest that there have been, in the wake of Crimea, no views questioning the norm as such. Fora
skeptical view, see Erik Voeten, What is so Great About ‘Territorial Integrity’ Anyway?, WASHINGTON POST (Mar. 17,
2014), http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/03/17/what-is-so-great-about-territorial-
integrity-anyway/.
35
Jeremy Rabkin, A More Dangerous World, 14 CLAREMONT REVIEW OF BOOKS 2 (2014), available at
http://www.claremont.org/article/a-more-dangerous-world/#.VXZVn1xViko.
36
Eliot Cohen, The ‘Kind of Thing’ Crisis, 10 THE AMERICAN INTEREST 3 (2015), available at http://www.the-
american-interest.com/2014/12/10/the-kind-of-thing-crisis/.
37
Stewart M. Patrick, Crimea: Stop Citing International Law and Start Condemning Russian Expansionism, THE
INTERNATIONALIST (Mar. 17, 2014), http://blogs.cfr.org/patrick/2014/03/17/crimea-stop-citing-international-law-
and-start-condemning-russian-expansionism/.
response to a major violation of international law. As will be shown, given its historical
record, a steadfast policy of non-recognition of the altered status of Crimea and of possibly
other parts of Ukraine provides the surest, though protracted, path to a future restoration
of Ukraine’s territorial integrity. While this third approach rejects that such a restoration
can only be achieved by employing increasing coercive pressure on Russia, it is not against
combining non-recognition with other sanctions that directly reinforce it.
C. Non-Recognition of a Claimed Territorial Title in International Practice
Although there were attempts to institutionalize non-recognition of territorial acquisitions

by force prior to the 20th century, especially by states and jurists in the Americas, a fully -
fledged legal foundation for its systematization arose only with the legal prohibition of
forcible territorial change across interstate boundaries in the League of Nations Covenant
(1919). In Article 10 of the treaty establishing the first collective security organization, the
signatories undertook “to respect and preserve as against external aggression the
38
territorial integrity and existing political independence of all members of the League.”
Almost immediately, a controversy arose over both the exact scope of the provision and
39
the content of third party obligations shoul d a violation occur. This controversy was not
settled in 1919, though Woodrow Wilson, the chief proponent of Article 10 as well as the
League as a whole, insisted that “territorial integrity is not destroyed by armed
intervention; it is destroyed by retention of territory, by taking territory away from [a
40
state].”
What might not have been clear from the broad wording in the text of the Covenant
41
became clarified over time in governmental responses to actual situations. There can be
no question that Article 10 was seen as being violated when external force brought about
an altered status of a League member territory. The first significant case arose when Japan
forcibly occupied the Chinese province of Manchuria in 1931 and then an independent
“State of Manchukuo” was declared on that territory in 1932. The League of Nations , as
well as the United States, rejected the Japanese assertions that Manchukuo was the
product of authentic internal self-determination and that its use of force and occupation
42
was an unrelated act of enforcing Japan’s treaty rights in Manchuria. The response first
38
League of Nations Covenant, art. 10.
39
See IAN BROWNLIE, INTERNATIONAL L AW AND THE USE OF FORCE BY STATES 62–64 (1963).
40
A Conversation with Members of the Senate Foreign Relations Committee: August 19, 1919 , in 62 THE P APERS OF
WOODROW WILSON 392 (Arthur S. Link ed., 1990).
41
See generally Joseph O’Mahoney, Rule Tensions and the Dynamics of Institutional Change: From “To Victors Go
the Spoils” to the Stimson Doctrine, 20 EUR. J. INT’L REL. 834 (2014).
42
See MIKULAS FABRY, RECOGNIZING STATES: INTERNATIONAL SOCIETY AND THE ESTABLISHMENT OF NEW STATES SINCE 1776 135
(2010).
adopted by the U.S., and then by the League, later became known as the Stimson
43
Doctrine. In identical letters sent to China and Japan following Japan’s seizure of
Manchuria in 1931, U.S. Secretary of State Henry Stimson announced that the United
States did not “intend to recognize any situation, treaty or agreement which may be
brought about by means contrary to the covenants and obligations of the Pact of Paris of
27 August 1928, to which treaty both China and Japan, as well as the United States, are
44
parties.” As the United States had not become a League member, it could not embed its
policy in Article 10. Instead, its basis was the widely ratified Pact of Paris, better known as
the Kellogg-Briand Pact, a multilateral treaty that renounced war as a legitimate
instrument in national policies of its signatories and committed them to settling their
disagreements by peaceful means, thus indirectly strengthening the legal proscription of
forcible territorial revisionism. In a matter of weeks, however, the League of Nations
Council adopted the American position, added a reference to Article 10, and made non-
45
recognition a policy that all League members “ought” to follow. The League’s Assembly
46
then passed a resolution that made the policy “incumbent” upon its members. After a
fact-finding investigation by a specially appointed commission, the Assembly affirmed
Chinese sovereignty over Manchuria and denied the legitimacy of the Japanese-controlled
47
“State of Manchukuo” declared in that territory in 1932.
The instrument of non-recognition was designed to prevent effective control of a territory

acquired in violation of international law from producing a legally valid title. Between 1932
and 1938 two inter-American treaties, the Rio Anti -War Treaty of Non-Aggression and
Conciliation (1933) and the Montevideo Convention on the Rights and Duties of States
(1933), bolstered the policy of non-recognition by making it an explicit legal obligation. In
addition to Manchukuo, the League also invoked non-recognition in the Chaco and Leticia
conflicts in South America and Italy’s conquest of Abyssinia. It was rejected only by Japan,
Germany, and Italy—the future Axis allies intent on forcible expansionism. In 1938 this
consensus suffered a blow when several League members —seeing that even economic
sanctions did not lead to the restoration of a member state, and unwilling to put in place
further coercive measures—recognized Italy’s sovereignty over Abyssinia. Thereafter,
43
See id. at 137.
44
Identical Notes from the US Secretary of State to the Chinese and Japanese Governments, January 8, 1932, in
DOCUMENTS ON INTERNATIONAL AFFAIRS 262 (John W. Wheeler-Bennett ed., 1933).
45
Note by Members of the Council of the League of Nations Other Than China and Japan to Japan, February 16,
1932, 12 MONTHLY SUMMARY OF THE L EAGUE OF NATIONS 45 (1932).
46
See Resolution Adopted by the Assembly on March 11, 1932, 12 MONTHLY SUMMARY OF THE LEAGUE OF NATIONS 106
(1932).
47
See Extracts from the Report of the Committee of Nineteen to the Assembly of the League of Nations, February
15, 1933 and Resolutions Adopted by the League Special Assembly on February 24, 1933 , in DOCUMENTS ON
INTERNATIONAL AFFAIRS 384–91 (1933).
Britain and France each legally acknowledged Italy’s conquest as well. The express purpose
48
of this exceptional measure was to keep the general peace. The Franco-British hope was
to steer Italy away from further forcible territorial revisionism and from its alliance with
Germany, but the act had an opposite effect. Rather than being pacified, the offender grew
emboldened to embark on further conquests, invading Albania in April 1939. Similarly, the
Franco-British attempts in 1938 to appease Hitler by acknowledging Germany’s forcible
annexation of Austria and by consenting to Germany’s demand at the Munich conference
that Czechoslovakia give up Sudetenland, made under the threat of force, merely
encouraged territorial aggress ion, starting with the destruction of the rest of
Czechoslovakia in March 1939.
Following these fiascos, Britain and France returned to the policy of non-recognition. It was
primarily other Axis powers and their small neutral neighbors that recognized the
annexation of Bohemia and Moravia, the proclamation of an independent “Slovak
Republic,” and Axis annexations after the eruption of the world war in September 1939 .
Non-recognition was the normative basis upon which governments -in-exile—mostly in
London—were established: They were the legal representatives of their illegally conquered
countries. In addition, Britain and the United States, which applied the policy most
consistently, refused to recognize the forcible annexations undertaken by the Soviet Unio n
between the signing of the Molotov-Ribbentrop Pact in August 1939 and the German
invasion of the Soviet Union in June 1941: Those of the Baltic republics and parts of Poland,
49
Romania, and Finland.
From 1941 on, a central purpose of the anti -Axis alliance—which was organized outside of
the framework of the League of Nations, defunct since 1940—was to overturn the Axis
conquests. This was achieved with respect to “Manchukuo,” the “Slovak Republic ,” and all
the other territories, except those seized by the Soviet Union. As the Kellogg-Briand Pact
contained no provision comparable to Article 10 of the Covenant implying the obligation to
50
respect the territorial integrity of parties violating it, there were no objections to the
Soviet Union keeping the seized territories of the enemy states —Romania, Finland,
Germany, and Japan—as an indemnity for wartime losses and a security buffer, in line with
pre-1919 justifications of defensive conquest. The case of the loss of eastern Poland to the
48
See Statement by the Representative of the United Kingdom With Regard to the Anglo-Italian Agreement of
April 16, 1938, May 10, 1938, 18 MONTHLY SUMMARY OF THE L EAGUE OF NATIONS 102–03 (1938). Hersch Lauterpacht
writes that it was on the basis of Italy’s failure to maintain the peace that Britain, in 1940, withdrew its
recognition of Italian annexation and declared itself in favor of the restoration of Ethiopia’s independence and its
king. See HERSCH L AUTERPACHT, RECOGNITION IN INTERNATIONAL L AW 356 (1947).
49
For a detailed overview of non-recognition practice between 1932 and 1941, see ROBERT L ANGER, SEIZURE OF
TERRITORY: THE STIMSON DOCTRINE AND RELATED PRINCIPLES IN L EGAL THEORY AND DIPLOMATIC PRACTICE 123–254 (1947).
50
See SHARON KORMAN, THE RIGHT OF CONQUEST: THE ACQUISITION OF TERRITORY BY FORCE IN INTERNATIONAL L AW AND
PRACTICE 199 (1996).
Soviet Union was far more controversial, as Poland was an ally and its government-in-exile
opposed it. Despite their initial preference for the restoration of Poland in its pre-World
War II borders, the United States and Britain accepted, at the 1945 Yalta conference, the
Soviet claims to Poland’s pre-1939 east, while territorially compensating Poland at the
expense of Germany. In contrast, the U.S., the U.K., and other predominantly Western
states maintained their non-recognition of the forcible incorporation of the three Baltic
republics consistently until their restoration in 1991.
Whatever the shortcomings of the League of Nations, the United Nations founding
conference in 1945 more or less reproduced the League’s provision on territorial integrity.
Article 2(4) of the UN Charter stipulated: “All members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the purposes of the
51
United Nations.” Similar provisions found their way into the founding and other binding
documents of regional organizations such as the Arab League (1945), the Organization of
American States (1948), and later the Organization of African Unity (1963), the Associati on
of Southeast Asian Nations (1967), and the Conference for Security and Cooperation in
Europe (1975). At the global level , numerous UN resolutions subsequently reiterated
inadmissibility of forcible territorial change. Important UN General Assembly Resol utions
2625 (XXV) on Friendly Relations and Cooperation Among States and 3314 (XXIX) on the
52
Definition of Aggression declared that no such change shall be recognized as legal.
By any measure, the post-1945 order has been very successful at suppressing the use of
interstate force for territorial gain. The reason has not been the more compact collective
security machinery of the United Nations —the UNSC has been for most of its existence
deeply divided, and UN members have displayed only marginally more will ingness to risk
blood and treasure against forcible territorial revisionism than League members —but a
decline in clear-cut attempts at armed territorial revisionism as such. To the extent it has
occurred, it has, in most cases, met with international non-recognition. The UNSC or the
UNGA resolutions called for, or implied, non-recognition in the cases of Western Sahara
(1975), East Timor (1976), East Jerusalem (1980), the Golan Heights (1981), Northern
53
Cyprus (1983), and Bosnia and Herzegovina (1992). The only internationally legitimized
forcible acquisition of title over sovereign territory followed India’s takeover of the
Portuguese colonial domain of Goa (1961) and Dahomey’s (today Benin) annexation of the
Portuguese colonial coastal city of São João Baptista de Ajudá (1961). While most Western
51
U.N. Charter art. 2, para. 4.
52
See G.A. Res. 2625 (XXV), Annex, U.N. Doc. A/RES/25/2625 (Oct. 24, 1970); see also G.A. Res. 3314 (XXIX),
Annex, U.N. Doc. A/RES/3314 (Dec. 14, 1974).
53
Non-recognition was also called for in the cases of Southwest Africa (Namibia), Rhodesia, and South African
Bantustans. These involved territorial claims that were nearly universally seen to have violated the right to
colonial self-determination.
countries condemned these resorts to force, others acquiesced to them, seeing force as a
tolerable response to the Portuguese defiance of the general decolonization consensus ,
which envisioned that tiny colonial enclaves abutting newly independent countries would
54
be transferred to them.
D. An Assessment of the Policy of Non-Recognition Prior to Crimea
Since its introduction in 1932, non-recognition has been a target of substantial criticism,
above all for its impotence to materially reverse the violations of territorial integrity. The
conquests of Manchuria, Abyssinia, and other territories, the argument went, showed that
League members did not regard themselves as earnestly obligated to fulfill their pledge to
preserve the territorial integrity of fellow member states; instead they reconciled
themselves to those conquests. Under those circumstances a fr ank recognition of de facto
situations was preferable to a pretense that, in the eyes of international law, nothing
55
changed. Law had to follow facts on the ground or face irrelevance: There was not much
56
point, as one author deftly put it, in “closing the barn door after the horse has escaped.”
Non-recognition was at best an ineffective resort to legal fictions, and at worst a downright
57
risk to peaceful relations with the castigated country.
As the critics suggest, and as the actual practice has demonstrated, there can be no
question that non-recognition is an imperfect substitute for a system of collective security
in which every declared breach of the norm of territorial integrity would be readily met
with the willingness to use all means necessary to restore the legal status quo. In the
absence of such a system, however, non-recognition has proved a rather effective long-
term instrument of opposition to forcible territorial change. Apart from upholding the
fundamental integrity of the rule of international law by denying that a serious breach of
law can metamorphose into a lawful outcome (ex injuria jus non oritur), the practice has
had real practical effects. By insisting on the pre-existing legal rights, non-recognition has
made the de facto holding of a territory continually problematic and insecure. It has been
entirely dependent on the holder’s physical ability to control the territory. But akin to title
to property in domestic society, title to territory in international society denotes not actual
58
possession but a socially validated right to possess. If the objective is permanent, stable,
54
See Quincy Wright, The Goa Incident, 56 AM. J. INT’L L. 617–32 (1962).
55
See Herbert W. Briggs, Non-Recognition of Title by Conquest and Limitations on the Doctrine, 34 AM. SOC’Y OF
INT’L L AW P ROCEEDINGS 79–82 (1940).
56
Id. at 81.
57
See Edwin M. Borchard & Phoebe Morrison, The Doctrine of Non-Recognition, in L EGAL PROBLEMS IN THE FAR EAST
CONFLICT 157 (Quincy Wright ed., 1941).
58
During the UNSC debate following Russia’s de facto annexation of Crimea, Samantha Power, the US ambassador
to the UN, captured the idea thus: “The national and international legal status of Crimea has not changed. A thief
can steal property, but that does not confer the right of ownership on the thief.” S/PV.7144, supra note 15, at 11.
and secure possession internationally, de facto possession is necessarily deficient; rightful

possession hinges on external legitimacy. Already, the end of World War II demonstrated
that a sharp decline or collapse in the physical ability to control an illegitimate possession
leads to the loss of that possession.
Non-recognition’s abiding legitimization of legally valid claims has several practical

manifestations. At the diplomatic level, these claims have become integral to proposed
frameworks to settle outstanding conflicts, whether efforts to mediate disputes over
Western Sahara, East Timor, Northern Cyprus, East Jerusalem, the Golan Heights , or Bosnia
and Herzegovina. This has been the case not only in relation to diplomatic schemes put
forward shortly after non-recognition was announced—as in the case of Mauritania’s 1979
withdrawal from the portion of Western Sahara it laid claim to and occupied in 1976 —but
also decades later. For example, according to published reports, Israel found itself unable
to offer peace settlements to Syria and the Palestinians in the late 1990s and 2000s
without giving up East Jerusalem and the Golan Heights, an outcome that would l ikely not
have occurred if outsiders simply accepted East Jerusalem and the Golan Heights as Israeli
territories when the Israeli parliament decided, in 1980 and 1981 respectively, that each
would be governed by Israeli law. Non-recognition, of course, has also served as the first
step to, and a necessary justificatory basis for, other sanctions. The long-standing non-
recognition, as well as diplomatic and economic isolation, led the population of the
“Turkish Republic of Northern Cyprus” to vote in 2004 for the UN-mediated proposal to
reunify the entity with the Republic of Cyprus, as the latter existed prior to Turkey’s
59
invasion of the island in 1974. The direct Iraqi annexation of Kuwait as an Iraqi province
in 1990 was followed, after a period of gradua lly escalating sanctions, by an
overwhelmingly supported UNSC-authorized military action to restore Kuwaiti sovereignty
and territorial integrity.
E. Upholding the Territorial Integrity of Ukraine
Given that non-recognition has been employed on its own a s well as in conjunction with a
wide array of other countermeasures, the question is: What precisely should be done
when a state asserts a title to territory seized by force from another state, thus breaching
the norm of territorial integrity? It should be noted that even non-recognition, though
relied on extensively since 1932, has not been universally accepted as a general legal
obligation of states. Both governments and scholars have argued that non-recognition is
60
obligatory only if mandated by treaties or legally binding decisions of the UNSC. By the
59
Non-recognition and diplomatic and economic sanctions had the domestic effect of helping turn the bulk of the
population against the unlawful status in the cases of Rhodesia and South African Bantustans as well.
60
See generally Alison Pert, The “Duty” of Non-Recognition in Contemporary International Law: Issues and
Uncertainties, SYDNEY L AW SCHOOL: L EGAL STUDIES RESEARCH P APER NO. 13/196 48–71 (2013); see also Counter-
Memorial of the Government of Australia, East Timor (Port. v. Austl.), 1991 I.C.J. Pleadings 9, ¶ 365 (June 1, 1992).
But see Stefan Talmon, The Duty Not to “Recognize as Lawful” a Situation Created by the Illegal Use of Force or
61
same token, there is no agreement on the exact requirements of non-recognition,
although the ICJ Namibia (1971) advisory opinion, as well as a number of country-specific
UNSC and UNGA resolutions, do list several components. At any rate, as a matter of
practice, states have not given up their discretion on when to employ non-recognition,
what to include in it, and whether to combine it with other countermeasures.
If states do not wish to give legitimacy to forcible change of interstate boundaries —and
international legal acceptance of the de facto annexation of Crimea, as the aftermath of
recognition of Italy’s sovereignty over Abyssinia attests, will likely encourage that—a
minimum response has to include the non-acceptance of the new claim of title and the
avoidance of actions implying legitimization of that claim. This policy denies the very
establishment of an international legal precedent that Burke-White worries the Crimean
62
case already accomplished. Beyond that, the response ought to factor in the genesis and
the severity of the violation, as well as broad interests and responsibilities of third parties,
both with respect to their populations and to the outside world. For instance, Israel’s
extensions of its law to East Jerusalem and the Golan Heights were preceded by UNSC
Resolution 242 (1967), which implicitly legitimized the military occupation of these and
other territories seized by Israel during the Six-Day War until Israel’s right to exist in peace
63
and secure borders were realized. In 19801981, only Egypt had acknowledged that right
in a peace treaty, and Israel had been in the process of returning the occupied Sinai to the
former belligerent. In contrast, Israel claimed its parliament acted to widen Israeli law to
the Golan Heights in response to persistent rejections by Syria to consider negotiating a
peace treaty with Israel. In the case of Cyprus, Turkey justified its use of force and
occupation of Northern Cyprus in 1974, which preceded the 1983 proclamation of the
“Turkish Republic of Northern Cyprus,” as a response to violations of the 1960 treaties
establishing Cypriot independence, of which it was one of the guarantors. In 1990 Iraq
invaded and occupied Kuwait, suddenly and without any apparent proximate cause,
invoking a claim to the country its government had formally relinquished in 1963. This was
immediately followed by the annexation of the entire Kuwaiti territory and the assumption
of control over Kuwait’s vast crude oil production. It is only natural that these intricacies,
along with Israel’s and Turkey’s standing as Western allies and Kuwait’s role in the global
energy economy, shaped any discretionary response to Israel, Turkey/Northern Cyprus ,
and Iraq beyond non-recognition of territorial changes resulting from the use of force.
Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance, in THE FUNDAMENTAL
RULES OF THE INTERNATIONAL L EGAL ORDER: J US COGENS AND ERGA OMNES OBLIGATIONS (Christian Tomuschat & J.M.
Thouvenin eds., 2006) (stating a contrary view that non-recognition of forcible territorial acquisition is a general
legal obligation); see also Martin Dawidowicz, The Obligation of Non-Recognition of an Unlawful Situation, in THE
L AW OF INTERNATIONAL RESPONSIBILITY (James Crawford et al. eds., 2010).
61
See Talmon, supra note 60, at 103–25; Dawidowicz, supra note 60, at 679, 684–86.
62
See Burke-White, supra note 29, at 74.
63
S.C. Res. 242, para. 1, U.N. Doc. S/RES/242 (Nov. 22, 1967).
Where does Russia’s incorporation of Crimea fit? Its actions might not have been as brazen
as Iraq’s in 1990—Russia neither overtly used military force nor did it directly annex
Crimea—but they were brazen enough. Russia reacted to a disputed change of
government in a neighboring state by an armed takeover of a territory of that state under
false pretenses, by backing in it an abruptly staged secession referendum which did not
conform to the international standards of free and fair voting, and by resorting to an
immediate absorption of that territory upon Crimea’s proclamation as an “independent
republic,” notwithstanding all the previous legally binding affirmations of the boundaries of
the neighboring state. These moves were extraordinary not least because, after 1945, first
the Soviet Union and then Russia had been consistent, and often outspoken, defenders of
the norm of territorial integrity.
A resolute stand against Russian conduct by announcing non-recognition of the altered

status of Crimea and by imposing a variety of diplomatic and economic countermeasures —
some of which were expanded or intensified following Russia’s pro-separatist intervention
in eastern Ukraine—is entirely justified. At the same time, great caution is necessary in
crafting policy towards Russia’s engagements in Ukraine. While concerns of the defenders
of a more forceful approach about potential political and legal consequences of Russia’s
actions are valid, the application of methods they advocate may drastically worsen mutual
relations with that great power—including in the UNSC where Russia’s permanent
membership requires cooperation in addressing most serious global security problems —
while not achieving the desired reversals in Ukraine. Economic sanctions are best at
politically demonstrating the earnestness of opposition not only to the targeted country
and its citizens but also to a variety of external actors, both public and private, who have
relations with it. The effect of sanctions is often indirect and long-term, as in Northern
Cyprus where, after more than twenty years, they helped convince the majority of the
population to back a reunified Cyprus. They are far less successful as a direct
64
intergovernmental instrument for eliciting policy changes, not least when the target is a
determined great power, and when sanctioning countries are themselves likely to suffer
significant economic harm, as at least some EU members are. Accordingly, sanctions
should not be aimed at wrecking the Russian economy, but rather at fortifying the policy of
65
non-recognition, thus principally targeting Crimea and any other territory where Russia
displaced, directly or indirectly, Ukrainian rule.
64
One of the most optimistic studies on the effectiveness of economic sanctions found that they were “at least
partially successful” in only thirty-four percent of cases. See GARY CLYDE HUFBAUER ET AL., ECONOMIC SANCTIONS
RECONSIDERED 158 (3d ed. 2007).
65
See Enrico Milano, The Non-Recognition of Russia’s Annexation of Crimea: Three Different Legal Approaches and
One Unanswered Question, 1 QUESTIONS OF INT’L LAW 35, 52 (2014) (listing diplomatic and economic sanctions that
flow from non-recognition of Crimea).
The danger of blanket, crippling economic sancti ons—not to mention major military
countermeasures—vis-à-vis a military power such as Russia is that they can lead to
66
unpredictable escalation. That escalation is likely to play out in, and be most detrimental
to, Ukraine itself, as Russia not only enjoys a marked geographical advantage for
maneuvering there, but also has more vital interests in the country than any other major
power. The Russian leadership can expect that, at the end of the day, no third party is
willing to take as much risk, or bear as much cost, for Ukraine as is Russia. Be that as it
may, advocates of a more forceful approach to Russia have not indicated what should
happen if their preferred countermeasures —however much they may serve the cause of
international legality—do not achieve the intended effect.
Ultimately, upholding the territorial integrity of Ukraine requires a long-term and patient
approach that prioritizes mitigation of violence within Ukraine’s recognized borders and
the strengthening of the Ukrainian state over ever intensifying coercive pressure on Russia.
As in the cases of Bantustans, the Baltic republics , or East Timor—the latter two of which
elicited not much more than sporadic declarations of non-recognition—the best hope for a
reversal in Ukraine rests with an internally generated governmental change in Russia, and
not directly with external actions. This may not be the quickest or most morally satisfying
approach, but it is the most balanced one. It takes into account both the international legal
and political interest in resisting forcible territorial change and Ukraine’s interest in a
peaceful re-integration of its territory.
F. Conclusion
This article argued that when it comes to contested international situations it is important
not only to clarify pertinent legal norms and obligations, but also to reflect on how they
can be upheld. This is because upholding them frequently allows more than one course of
action, each with at least potentially different political and legal consequences. In these
cases, legal assessments cannot be made in isolation from political assessments. While
there is widespread agreement that territorial integrity—one of the most venerable
international norms after 1945—needs to be safeguarded, there is disagreement on how
to do so in the Ukrainian case, where the culprit is a neighboring great power. Two
arguments were presented here: (1) That the norm cannot be upheld in regards to Crimea ,
as Russia cannot be removed from there, but if diplomacy with Russia is handled deftly, it
can be preserved for the future; and (2) that the norm can be upheld in regards to Crimea
and other Ukrainian territories, but only if Russia is faced with substantially more potent
economic and military countermeasures. This article was skeptical of both of these
positions and offered a middle-of-the-road argument on how to uphold the norm of
territorial integrity in Ukraine. The way forward is neither to accept Russia’s de facto
66
See Roy Allison, Russian “Deniable” Intervention in Ukraine: How and Why Russia Broke the Rules, 90 INT’L AFF.
1255, 1297 (2014).
annexation of Crimea nor to resort to ever increasing coercive pressure on Russia. It is to

maintain firmly the policy of non-recognition of the altered status of Crimea —and possibly
of other Ukrainian territories —and to buttress it with sanctions intended to manifest the
rejection of that altered status .
Ukraine, International Law, and the Political Economy of Self-

Determination
By Umut Özsu*
Abstract
This article attempts to destabilize the assumption that self-determination can be

restricted to a “purely legal” analysis of the sort to which most international legal scholars
have conventionally confined themselves. It does so by focusing upon the conditions under
which the legal rhetoric of collective self-determination came to be mobilized during the
course of Russia’s incursion into and subsequent annexation of Crimea in early 2014, as
well as its ongoing deployment in the context of Russia’s political, military, and financial
support for self-declared “people’s republics” in Donetsk and Luhansk. After briefly
examining legal arguments in support of and in opposition to Russia’s actions, the article
argues that the Ukraine crisis problematizes the traditional reluctance of international
lawyers to engage with the complex, and often counterintuitive, articulations of self-
determination offered by participants in armed conflict. Recourse to self-determination
cannot be understood without appreciating the concrete politico-economic pressures in
response to which states are created and recreated. The alternately “lofty” and “cynical”
formulations of self-determination that have characterized the ongoing struggle in and
over Ukraine can only be understood in light of protracted competition between rival class
projects that generate significantly different visions of world order. This compels us to
confront the class dimensions of the concept of collective self-determination rather than
continuing to conceive it as a purely national, or ethno-national, project of recognition or
emancipation.
A. Introduction
Many scholars consider international law to be at least partly agnostic with respect to the
complex processes whereby states are formed, transformed, and dissolved. Frequently
characterized as “factual” or “political,” many such processes have classically been
*
Assistant Professor, University of Manitoba Faculty of Law (Umut_Ozsu@umanitoba.ca). For detailed written
comments, I thank Karen Knop, Boris Mamlyuk, and Zoran Oklopcic. I also thank Sujit Choudhry, Saira Mohamed,
Brad Roth, James Tully, Jure Vidmar, and other participants in the “Between Law, Power, and Principle”
workshop, held on 13 February 2015 at the University of California at Berkeley School of Law, and the “After Self-
Determination” workshop, held on 26 March 2015 at the University of Manitoba Faculty of Law. The usual caveats
apply.
2015 Political Economy of Self-Determination 435
understood to exist outside the scope of international legal doctrine sensu stricto, this
being regarded first and foremost as a class of rules and principles that govern the conduct
of formally constituted and recognized states and other international persons. As a result,
international law tends to offer comparatively little guidance in situations of civil strife or
even outright civil war in which rival groups engage in a struggle for control over state
institutions and governmental legitimacy, particularly when such struggle is accompanied
by serious and sustained secessionist claims. Rather than prescribing or proscribing a
particular outcome, international law—as conventionally understood—counsels caution
and restraint, encouraging the extension of de jure recognition only after a given entity is
deemed to have satisfied the conditions of statehood articulated most famously, though
not without controversy, in the 1933 Montevideo Convention: A defined territory, a
permanent population, a government, and the capacity to enter into relations with other
1
states. Whatever informal relations may be established for pragmatic or prudential
reasons with this or that participant in the conflict, it is only with the fulfillment of these
criteria by one or another participant that a state has traditionally been thought to be
constituted and to warrant formal recognition as such. Hence the crucial importance of
what has conventionally been dubbed the doctrine of “effective control”: until such time
as a party to the conflict has demonstrated through internal processes its actual authority
over the relevant territory, population, and governmental institutions, it cannot be said to
2
wield the kind of power requisite for recognition as the government of a state.
Not surprisingly, the idea of self-determination has always generated considerable

difficulties in this regard. On the one hand, in order to have any meaning at all, the concept
of self-determination must apply, indirectly if not necessarily directly, to the processes
whereby states are made, remade, and unmade. On the other hand, such application must
be strictly regulated, the alternative generally being cast as a conceptually murky and
normatively unsustainable extension of the concept of self-determination to all manner of
disparate and structurally unrelated grievances and aspirations. In the absence of such
strict regulation, typified by the 1970 Friendly Relations Declaration’s so-called “safeguard
3
clause,” the UN Charter’s prioritization of territorial sovereignty—its oft-derided “state-
1
Convention on Rights and Duties of States Adopted by the Seventh International Conference of American States
art. 1, Dec. 26, 1933, 165 L.N.T.S. 19.
2
For a thorough discussion, see DAVID RAIČ, STATEHOOD AND THE LAW OF SELF-DETERMINATION 49–88 (2002). For an
attempt to rethink the idea of “effective control” in light of recent developments in Africa and Latin America, see
Brad R. Roth, Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control
Doctrine, 11 MELB. J. INT’L L. 393 (2010). See also BRAD R. ROTH, SOVEREIGN EQUALITY AND MORAL DISAGREEMENT:
PREMISES OF A PLURALIST INTERNATIONAL LEGAL ORDER 169–220 (2011).
3
The Declaration states:
Nothing in the foregoing paragraphs [about the principle of equal

rights and self-determination of peoples] shall be construed as
authorizing or encouraging any action which would dismember or
centrism”—would be undermined, perhaps fatally. Consequently, since the end of the Cold
War, most international lawyers have tended to cast self-determination primarily as a thin
right to recognition within an existing state (“internal self-determination”), and only
secondarily and derivatively as an extraordinary right of remedial secession or outright
4
independence (“external self-determination”). During much of the Cold War, many
states—particularly those identifying as socialist or non-aligned—regarded decolonization
through the exercise of the right to external self-determination as the core of self-
determination more generally. Today, external self-determination is typically understood
to be of a highly exceptional character, limited on most accounts to non-self-governing
5
territories and “peoples subject to alien subjugation, domination, and exploitation.”
impair, totally or in part, the territorial integrity or political unity of

sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination
of peoples as described above and thus possessed of a government
representing the whole people belonging to the territory without
distinction as to race, creed or color.
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations, principle 5, G.A. Res. 2625 (XXV), U.N. Doc. A/RES/25/2625
(XXV) (Oct. 24, 1970). Note that this “safeguard clause” was reaffirmed in the 1993 Vienna Declaration and
Programme of Action. See UN World Conference on Human Rights, Vienna Declaration and Programme of Action,
32 I.L.M. 1661, 1665 (June 25, 1993). This is arguably the most famous such clause, but it is by no means
exceptional. On the contrary, as James Summers has noted, “[t]he normal response in international instruments
has been for an article on self-determination to be accompanied with provisions on the territorial integrity of
states.” JAMES SUMMERS, PEOPLES AND INTERNATIONAL LAW: HOW NATIONALISM AND SELF-DETERMINATION SHAPE A
CONTEMPORARY LAW OF NATIONS 332 (2007).
4
The Supreme Court of Canada’s observations in its influential Quebec Secession Reference advisory opinion
provide a tidy illustration:
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. 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.
See Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 282, para. 126 (Can.). This claim is sometimes framed
as one relating to the current (but not necessarily future) state of the relevant law. See, e.g., SIMONE F. VAN DEN
DRIEST, REMEDIAL SECESSION: A RIGHT TO EXTERNAL SELF-DETERMINATION AS A REMEDY TO SERIOUS INJUSTICES? 310–11 (2013)
(“At present, the right to self-determination does not allow for unilateral secession, but rather focuses on its
internal dimension and is limited by the traditional core principles of international law, such as sovereignty and
territorial integrity of the State.”) (emphasis added).
5
The International Court of Justice has made this point on a number of occasions, most recently in its advisory
opinions on Israel’s construction of the West Bank security wall and Kosovo’s unilateral declaration of
independence. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Obscured by this standard and rather opaque characterization is the complex role played
by the rhetoric of self-determination in the messy, multifaceted processes whereby states
are rent asunder or cobbled together with a view to generating new distributions of
sovereign authority, particularly outside the context of decolonization foregrounded in the
General Assembly resolutions that were adopted during the height of the idea’s resonance
6
in Asia and Africa. To grapple with self-determination’s shifting and multifarious
articulations in the hands of different claimants to state power would, it is often thought,
stretch the concept too far, extending it to phenomena to which even enthusiastic
advocates have traditionally been reluctant to deem it applicable.
This reluctance to confront the discursive complexity of self-determination has many

causes—and even more consequences. However, a significant portion of it stems from the
default positivism in which so much international legal doctrine continues to be rooted.
After all, if the task of “legal science”—as conceived by most classical legal positivists—is to
explain the operation of an integrated order of valid legal rules, then understanding the
forces and relations behind the emergence, transformation, and disintegration of such a
system is an endeavor that generally falls beyond the ambit of the jurist’s vocation and
expertise. For those who espouse such a view, the attempt to shed light upon the
normative architecture of an established legal order is to be strictly distinguished from the
attempt to elucidate the powers and dynamics through which it first arises: the former is a
properly juridical exercise, part and parcel of rule-based, value-neutral, thoroughly
objective legal analysis, while the latter is an activity best left to historians, sociologists,
political theorists, and others. Thus, for Hans Kelsen, “juristic theory,” a specifically
normative mode of jurisprudence that examines legal order as a “system of valid norms,” is
to be distinguished sharply from the “sociological or realistic theory of law,” according to
which investigation of recurring patterns of behavior can yield insight into the rules that
7
structure everyday life. Similarly, for H. L. A. Hart, legal theory must necessarily adopt the
“internal point of view,” examining the nature of legal obligation so as to illuminate the
binding force of legal rules, rather than the “external point of view,” confined as it is to
8
tracking empirically verifiable regularities concerning the social efficacy of such rules.
Advisory Opinion, 2004 I.C.J. 136, 171-72, para. 88 (July 9); Accordance with International Law of the Unilateral
Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403, 436, para. 79 (July 22).
6
See G.A. Res. 1514 (XV), U.N. Doc. A/RES/1514 (XV) (Dec. 14, 1960); see also G.A. Res. 1541 (XV), U.N. Doc.
A/RES/1541 (XV) (Dec. 15, 1960). For recent reconsideration of the context, see SUNDHYA PAHUJA, DECOLONISING
INTERNATIONAL LAW: DEVELOPMENT, ECONOMIC GROWTH, AND THE POLITICS OF UNIVERSALITY 80–86 (2011). See also
MATTHEW CRAVEN, THE DECOLONIZATION OF INTERNATIONAL LAW: STATE SUCCESSION AND THE LAW OF TREATIES (2007).
7
HANS KELSEN, GENERAL THEORY OF LAW AND STATE 162 (Anders Wedberg trans., 1945).
8
H. L. A. HART, THE CONCEPT OF LAW 89–90 (2d ed. 1994).
Such views have long exerted influence over international legal scholarship on questions of
self-determination. In his monumental study of statehood, James Crawford, for instance,
argued that while unilateral secession has traditionally not “involve[d] the exercise of any
right conferred by international law,” such law has been “prepared to acknowledge
political realities once the independence of a seceding entity was firmly established and in
9
relation to the territory effectively controlled by it.” In other words, international law has
little to say about the nebulous, multifactorial processes through which new polities are
formed, particularly outside the colonial context. But this new state of affairs—or set of
“political realities”—may attract de jure recognition once the formal criteria of statehood
10
are deemed to have been satisfied. On a rote positivist account, rendering self-
determination in broad enough terms to capture the different ways in which it is invoked
under conditions of anarchy or civil war would expose the concept to a variety of
“political” and “economic” concerns that have precious little to do with the character of
law and legal reasoning. The ongoing influence of traditional legal positivism is a significant
11
reason for this, though not, of course, the only such reason.
This article attempts to destabilize the assumption that self-determination can be

restricted to a “purely legal” analysis of the sort to which many international legal scholars
have conventionally confined themselves. It does so by focusing upon the conditions under
which the legal rhetoric of self-determination came to be mobilized during the course of
Russia’s incursion into and subsequent annexation of Crimea in early 2014, as well as its
ongoing deployment in the context of Russia’s political, military, and financial support for
self-declared “people’s republics” in Donetsk and Luhansk. After briefly examining the legal
arguments that have been floated in support of and opposition to Russia’s actions, I argue
that the Ukraine crisis—the culmination of a broad trend over the past two decades to
move away from the UN Charter’s prioritization of territorial sovereignty and toward what
9
JAMES R. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 388–89 (2d ed. 2006).
10
It bears noting that Crawford maintains this positivist stance despite his otherwise highly nuanced treatment of
self-determination. See James Crawford, The Right of Self-Determination in International Law: Its Development
and Future, in PEOPLES’ RIGHTS 7, 38 (Philip Alston ed., 2001) (“The problem with self-determination, outside the
colonial context, is this: while authoritative sources speak to its existence, it is an intensely contested concept in
relation to virtually every case where it is invoked”).
11
Hence, I do not mean to suggest that all international lawyers with an interest in issues of self-determination
warrant characterization as legal positivists, and that such characterization would explain their generally tepid
engagement with the concept. My claim is simply that such positivism tends to inform the way in which
international lawyers typically frame the concept’s content and scope of application. For notable examples of
non-positivistic international legal scholars who grapple with self-determination’s complex articulations, see
KAREN KNOP, DIVERSITY AND SELF-DETERMINATION IN INTERNATIONAL LAW (2002); Martti Koskenniemi, National Self-
Determination Today: Problems of Legal Theory and Practice, 43 INT’L & COMP. L.Q. 241 (1994); Nathaniel Berman,
Sovereignty in Abeyance: Self-Determination and International Law, 7 WISC. INT’L L. J. 51 (1988); Gerry Simpson,
The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age, 32 STAN. J. INT’L L. 255 (1996). I differ
from these and other scholars in my explicit concern for questions of political economy.
12
many regard as a new species of liberal interventionism —problematizes the traditional
reluctance of international lawyers to engage with the different ways in which self-
determination is imagined in actual practice. Central to their self-identification as jurists
with a particular set of concerns and competencies, this reluctance has prevented most
international lawyers from taking seriously the complex, often counterintuitive
articulations of self-determination that are offered by participants in armed conflict, with
the predictable result that the real social power of self-determination discourse—its ability
to formalize radically different class projects—is thereby mystified and obfuscated.
Recourse to self-determination cannot, I argue, be understood without appreciating the
concrete politico-economic pressures in response to which states are created and
recreated. The alternately “lofty” and “cynical” formulations of self-determination that
have characterized the ongoing struggle in and over Ukraine can only be understood in
light of protracted competition between rival class projects that generate significantly
different visions of world order. This compels us to confront the class dimensions of the
concept of self-determination—long recognized by Marxist historians and sociologists, and
also signalled to some degree (in the form of the idea of “economic self-determination”) by
13
socialist and non-aligned international lawyers during the Cold War —rather than
12
Classic studies of this development (and of its various ramifications) include Thomas M. Franck, The Emerging
Right to Democratic Governance, 86 AMER. J. INT’L L. 46 (1992); BRAD R. ROTH, GOVERNMENTAL ILLEGITIMACY IN
INTERNATIONAL LAW (1999); DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW (Gregory H. Fox & Brad R. Roth eds.,
2000). For recent reconsideration, see, e.g., STEVEN WHEATLEY, THE DEMOCRATIC LEGITIMACY OF INTERNATIONAL LAW
(2010); Jean d’Aspremont, 1989–2010: The Rise and Fall of Democratic Governance in International Law, in SELECT
PROCEEDINGS OF THE EUROPEAN SOCIETY OF INTERNATIONAL LAW: VOLUME 3, at 61 (James Crawford & Sarah Nouwen eds.,
2012); Susan Marks, What Has Become of the Emerging Right to Democratic Governance?, 22 EUR. J. INT’L L. 507
(2011); RUSSELL BUCHAN, INTERNATIONAL LAW AND THE CONSTRUCTION OF THE LIBERAL PEACE (2013). Nico Krisch has raised
this point explicitly in the context of recent developments in Ukraine. See Nico Krisch, Crimea and the Limits of
International Law, EJIL TALK! (Mar. 10, 2014), http://www.ejiltalk.org/crimea-and-the-limits-of-international-law/
(arguing that:
[t]he more formal classical rules [on the use of force and self-
determination] have come under pressure by arguments from
democracy (recognizing the continued relevance of a democratic
government in exile), from rights (of individuals threatened by a
crisis, calling for protection and intervention) and from liberal
conceptions of political choice (the right to secede as an exercise of
self-determination)).
13
For what arguably remains the sharpest Marxist historical examination of self-determination claims, see E. J.
HOBSBAWM, NATIONS AND NATIONALISM SINCE 1870: PROGRAMME, MYTH, REALITY (2nd ed. 1992). For discussion of
“economic self-determination” (including ideas about sovereignty over and free utilization of natural resources) in
the context of the International Covenant on Economic, Social, and Cultural Rights, see BEN SAUL, DAVID KINLEY &
JACQUELINE MOWBRAY, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS: COMMENTARY, CASES, AND
MATERIALS 12–132 (2014). For broader discussion of self-determination’s relation to the principle of permanent
sovereignty over natural resources, see NICO SCHRIJVER, SOVEREIGNTY OVER NATURAL RESOURCES: BALANCING RIGHTS AND
DUTIES 49–70 (1997).
continuing to conceive it solely as a national (or ethno-national) project of recognition or

14
emancipation.
B. Aggression and Intervention
Self-determination claims are rarely advanced in a vacuum. In nearly all cases, they are
bundled up with a large number of different assertions and assumptions about the nature
and authority of international law. The Ukraine conflict has been no exception in this
regard. In addition to a variety of specific claims about the content and scope of
application of self-determination, the conflict has also produced a variety of broad legal
arguments. While most such arguments relate to self-determination only indirectly, they
establish much of the conceptual framework for claims oriented specifically towards self-
determination.
Considered from the standpoint of established United Nations law, the legal consequences
15
of Russia’s ongoing violation of Ukraine’s sovereignty, particularly in Crimea, have widely
been regarded as fairly straightforward. First and foremost, Russia’s unilateral military
intervention into and eventual annexation of Crimea has typically and justifiably been
understood to constitute an act of aggression. As such, it has been condemned as a
flagrant violation of the prohibition on non-defensive use of force, enshrined in classical
16
form in Articles 2(4) and 51 of the UN Charter. Those who defend Russia’s invasion of
Crimea sometimes attempt to develop arguments on the basis of the Article 51 exception
for individual or collective self-defense. The obvious and insurmountable difficulty with
these arguments is that it is impossible to adduce credible evidence that Russia was
subject to an armed attack prior to its invasion of Crimea. Similarly, while intervention to
protect nationals abroad has sometimes been entertained as a basis for a more expansive
and charitable reading of Article 51, and while the upper house of the Federal Assembly of
Russia appeared to rely upon this approach when it authorized the use of force in Ukraine
14
Although it goes without saying that such nationalism frequently lies at the root of many self-determination
claims.
15
For the purposes of this article, I include the city of Sevastopol in my discussion of Crimea. Officially a “city with
special status,” and therefore distinct from Crimea under Ukrainian constitutional and administrative law,
Sevastopol hosts Russia’s Black Sea Fleet and has traditionally been accorded great material and symbolic
importance by many Russians, not least because of its crucial role on the eastern front during the Second World
War.
16
As is well-known, Article 2(4) prohibits the threat or use of force against any state’s territorial integrity and
political independence, while Article 51 allows for an important exception to this prohibition in cases of individual
or collective self-defense on the part of UN member states: If any such state is subject to armed attack, it may
exercise its right of self-defense even before the Security Council, acting under Chapter VII of the Charter, has
taken actions to maintain international peace and security. Charter of the United Nations with the Statute of the
International Court of Justice Annexed Thereto arts. 2(4), 51 1 U.N.T.S. XVI (June 26, 1945).
17
on 1 March 2014, it has not always been easy to find concrete evidence that Russian
nationals in Ukraine have been subject to systemic and pervasive attacks of the kind
18
required to trigger the application of any such rule.
Russia and its supporters have also advanced, or at least suggested, a number of
supplementary arguments. Some, for instance, have argued that Russia has been engaged
in an act of humanitarian intervention. Others contend, somewhat more plausibly, that
Russia was “invited” to intervene, either by Viktor Yanukovych, ousted as Ukraine’s
president in February 2014, or Sergey Aksyonov, “elected” Crimea’s prime minister
19
through forcible means later the same month. Neither of these two ancillary arguments
is persuasive.
For one thing, despite pervasive claims to the contrary since the end of the Cold War—
particularly since the “illegal but legitimate” NATO bombing campaign during the Kosovo
20
War —there is no legal basis for undertaking humanitarian intervention without express
authorization from the Security Council, however “legitimate” or even necessary the
relevant use of force may appear to be. Even on a charitable account of the relevant
doctrine, the legality of unilateral humanitarian intervention—and of the “responsibility to
protect,” which is widely touted as a more palatable successor to such intervention—is
extremely tenuous. No multilateral treaty governing humanitarian intervention or the
“responsibility to protect” is currently available, and neither finds significant support in
customary international law, the requisite combination of opinio juris and established
17
Putin’s Letter on Use of Russian Army in Ukraine Goes to Upper House, TASS RUSSIAN NEWS AGENCY (Mar. 1, 2014),
http://itar-tass.com/en/russia/721586; Russian Parliament Approves Troop Deployment in Ukraine, BBC NEWS
(Mar. 1, 2014), http://www.bbc.com/news/world-europe-26400035.
18
See, e.g., UN Office of the High Commissioner for Human Rights, Ukraine: Misinformation, Propaganda and
Incitement to Hatred Need to be Urgently Countered—UN Human Rights Report (Apr. 15, 2014),
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14511&LangID=E (stating that “while
there were some attacks against the ethnic Russian community, these were neither systematic nor widespread”).
But see Stephen F. Cohen, The Silence of American Hawks About Kiev’s Atrocities, THE NATION (June 30, 2014),
http://www.thenation.com/article/180466/silence-american-hawks-about-kievs-atrocities. As Boris Mamlyuk
notes in his contribution to this issue, Russian officials and legal advisors currently appear to be attempting to
develop new doctrinal tools to protect nationals and “compatriots” abroad. See Boris N. Mamlyuk, The Ukraine
Crisis, Cold War II, and International Law, 16 GERMAN L.J. 479 (2015).
19
Significantly, Vitaly Churkin, Russia’s permanent representative to the UN, appeared to make both claims
before the Security Council in early March 2014. See S.C. 7124th mtg., U.N. Doc. S/PV.7124 (Mar. 1, 2014); S.C.
7125th mtg.; U.N. Doc. S/PV.7125 (Mar. 3, 2014).
20
See the Independent International Commission on Kosovo’s influential ex post facto assessment of the
intervention: INDEPENDENT INTERNATIONAL COMMISSION ON KOSOVO, THE KOSOVO REPORT: CONFLICT, INTERNATIONAL
RESPONSE, LESSONS LEARNED 163–98 (2000).
21
patterns of state practice being lacking. To put the matter simply, neither Russia nor any
other state is capable of intervening in Ukraine absent Security Council authorization, at
least not without falling foul of the post-1945 framework for the use of force.
For another thing, a state can justify its intervention on the basis of an invitation if and only
if relevant governmental authorities in the state that is subject to intervention are
responsible for issuing the invitation. By the third week of March 2014, when Moscow
signed and ratified a treaty formalizing Crimea’s immediate admission to the Russian
22
Federation, Yanukovych no longer wielded authority over government institutions in
Kiev: the Ukrainian parliament had voted to remove him from office on 22 February, and
he appears to have abandoned the city, eventually to find refuge in Moscow, on the
preceding day. Thus, if the standard of “effective control,” though offensive in its
deference to “might makes right,” remains key to assessing the validity of an invitation to
intervene under conditions of secessionist armed conflict, as most international lawyers
23
continue to believe, Ukraine cannot be said to have requested or provided its consent to
24
any intervention on the part of Russia. Naturally, this is even more pertinent in the case
21
The notion of a “responsibility to protect” was first articulated in the final report of an international
commission sponsored by the Canadian federal government. See INTERNATIONAL COMMISSION ON INTERVENTION AND
STATE SOVEREIGNTY, THE RESPONSIBILITY TO PROTECT: REPORT OF THE INTERNATIONAL COMMISSION ON INTERVENTION AND STATE
SOVEREIGNTY (2001). The notion has received only limited support thus far, and even then only through non-
binding resolutions and related statements. See G.A. Res. 60/1, paras. 138–39, U.N. Doc. A/RES/60/1 (Oct. 24,
2005); S.C. Res. 1674, para. 4, U.N. Doc. S/RES/1674 (Apr. 28, 2006); UN Secretary-General Ban Ki-moon, Address
at Event on “Responsible Sovereignty: International Cooperation for a Changed World” (July 15, 2008),
http://www.un.org/sg/selected-speeches/statement_full.asp?statID=1631.
22
The legal status of the agreement has been questioned widely, with some going so far as to regard it as void ab
initio on the grounds that it violates a jus cogens norm of territorial integrity. See, e.g., Gregory H. Fox, The Russia-
Crimea Treaty, OPINIO JURIS (Mar. 20, 2014), http://opiniojuris.org/2014/03/20/guest-post-russia-crimea-treaty/.
23
See, e.g., ROTH, supra note 12, at 185–88; David Wippman, Pro-Democratic Intervention by Invitation, in Fox &
Roth, supra note 12, at 293, 297–99; Georg Nolte, Secession and External Intervention, in SECESSION: INTERNATIONAL
LAW PERSPECTIVES 65, 79–80 (Marcelo G. Kohen ed., 2006); OLIVIER CORTEN, THE LAW AGAINST WAR: THE PROHIBITION ON
THE USE OF FORCE IN CONTEMPORARY INTERNATIONAL LAW 277-87 (2010). Cf. Crawford, supra note 10, at 40–47;
CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 99 (3d ed. 2008). For exaggerated criticisms that elide the
continued centrality of the UN Charter’s prioritization of territorial sovereignty, see Christopher J. Le Mon,
Unilateral Intervention by Invitation in Civil Wars: The Effective Control Test Tested, 35 N.Y.U. J. INT’L L. & POL. 741,
743, 745 (2003) (arguing, inter alia, that “effective control” is a “dated principle” that “does not permit extensive
flexibility”); Gregory H. Fox, Intervention by Invitation, in THE OXFORD HANDBOOK OF THE USE OF FORCE IN INTERNATIONAL
LAW 816, 835 (Marc Weller ed., 2015) (insisting, rather exaggeratedly, that the UN is “increasingly unlikely to
prefer effective control to democratic legitimacy”).
24
This was precisely one of the points that Ukraine made before the Security Council. See Letter Dated 4 March
2014 from the Permanent Representative of Ukraine to the United Nations Addressed to the President of the
Security Council, U.N. Doc. S/2014/152 (Mar. 4, 2014),
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/152.
of Crimea, since Aksyonov, acting in his capacity as the head of a constituent part of
25
Ukraine, has never been empowered to issue a sufficiently authoritative invitation.
C. Class and Competition: Self-Determination’s Multiple Imaginaries
These legal arguments are vitally important. Were it not for the fact that Russia and fellow
“BRIC” state China are permanent members of the Security Council, with the power to veto
prospective resolutions, that body would almost certainly have denounced Russia’s actions
in Ukraine as illegal. That said, what is nearly always elided in discussions about the
ongoing conflict in Ukraine are the different conceptions of self-determination that have
been deployed by the various concerned parties. Indeed, if it is accurate to speak of a
26
“crisis” here, it is to no small extent because recent developments in Ukraine have laid
bare a much deeper fracture in the international law of self-determination and the broader
understanding of international legal order instituted in 1945. In essence, the struggle in
and over Ukraine is a powerful and far-reaching illustration of the fact that self-
determination does not find expression in a single determinate logic, and that it has always
served as a means of articulating and mobilizing enthusiasm for competing politico-
economic projects, often with radically incommensurable assumptions, objectives, and
implications.
For the Western-supported government of Ukrainian President Petro Poroshenko and

Prime Minister Arseniy Yatsenyuk, Russia is a fundamentally neo-imperial entity,
determined to leverage its pivotal role in the global oil and gas trade into a program of
territorial expansion and increased geopolitical influence, not least by reinforcing corrupt
and despotic administrations of the sort typified by Yanukovych’s various caretaker
governments. The unstable coalition currently in control of Kiev counts in its ranks a large
number of neo-liberals and Ukrainian ultra-nationalists, many of whom have consistently
opposed the kind of “Eurasianism” and revived pan-Slavism that remains commonplace
27
among Russian foreign policy circles. Bankrolling much of their platform is a group of
25
See Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicaragua v. U.S.A.), 1986 I.C.J. 14,
126, para. 246 (June 27) (“[I]t is difficult to see what would remain of the principle of non-intervention in
international law if intervention, which is already allowable at the request of the government of a State, were also
to be allowed at the request of the opposition.”).
26
The question of whether Ukraine is a “crisis” is a very real one, as there is much to be said for the view that
international responses to developments in Ukraine have confirmed—not undermined—the conventional
prohibitions against unilateral military intervention and non-defensive use of force. Nevertheless, the fact that
Crimea has effectively been integrated into Russia and that much of Ukraine has been transformed into the site of
a Cold War-style proxy war testifies to the scale of its geopolitical repercussions and the scope of its precedential
implications.
27
For the rise of the right in post-Yanukovych Ukraine, see “Ukraine’s European Discourse Does Not Correspond to
Reality”: Interview with Volodymyr Ishchenko, EURASIANET (Apr. 26, 2015), http://eurasianet.es/2015/04/ukraines-
european-identity-does-not-correspond-to-reality/ (last visited May 1, 2015); The Far Right Are Still the Most
rival, but structurally linked, “business clans” with strong roots in Kiev and key western
cities such as Lviv. These economic-administrative interests groups have long played a
significant role in defining Ukraine’s political economy, governance structure, and domestic
and foreign policies, often, though certainly not always, by way of opposition to similar
“clans” in Crimea and the heavily industrialized Donbass, Kharkiv, and Dnipropetrovsk
28
regions. Committed to consolidating and amplifying the “spirit of Maidan” so as to
accede to the European Union and deepen its already considerable engagement with the
World Trade Organization and international financial institutions, the oligarchic
bourgeoisie of western and central Ukraine frequently juxtaposes its “European”
aspirations with Russia’s “Asiatic” credentials, typified by the newly established Eurasian
29
Economic Union. From this perspective, the real self-determination claim at issue in the
ongoing crisis is that of the “Ukrainian people,” not that of the various “pro-Russian”
groups within Ukraine. That is to say, self-determination is to be understood as the
foundation of independent statehood, not as a constant threat to territorial integrity and
uti possidetis juris in the post-Soviet space. More precisely, it is to be understood primarily
as the ability of the “Ukrainian people” to “choose” European integration over Russian
hegemony, and only secondarily as the ability of the “peoples” of Donetsk and Luhansk to
30
conduct elections with an eye to autonomy or independence. The UN model of national
statehood—central to the “embedded liberalism” that lay at the heart of the post-1945
project of reconstituting international order through a new set of legal and financial
Visible Political Forces, CTR. SOC. & LABOR RESEARCH (Dec. 9, 2014), http://cslr.org.ua/en/the-far-right-are-still-the-
most-visible-political-forces/. The chief exponent of Russian “Eurasianism” is the Moscow-based neo-fascist
Alexander Dugin. For a taste of his work, see ALEXANDER DUGIN, EURASIAN MISSION: AN INTRODUCTION TO NEO-
EURASIANISM (2014). For one account of the role of “Eurasianism” in the crisis, see Timothy Snyder, Fascism, Russia,
and Ukraine, N.Y. REV. BOOKS (Mar. 20, 2014), http://www.nybooks.com/articles/archives/2014/mar/20/fascism-
russia-and-ukraine/.
28
For the emergence and consolidation of regional “business clans,” see RICHARD SAKWA, FRONTLINE UKRAINE: CRISIS
IN THE BORDERLANDS 60-67 (2015); cf. Sławomir Matuszak, The Oligarchic Democracy: The Influence of Business
Groups on Ukrainian Politics, 42 OŚRODEK STUDIÓW WSCHODNICH STUD. (Sept. 2012),
http://www.osw.waw.pl/en/publikacje/osw-studies/2012-10-16/oligarchic-democracy-influence-business-
groups-ukrainian-politics.
29
Yatsenyuk himself is given to stressing Ukraine’s “European future,” and to speaking of “the European project
of Ukraine.” See, e.g., US Department of State, Press Conference of Prime Minister Arseniy Yatsenyuk and
Secretary of State John Kerry, Kiev, Ukraine (Feb. 5, 2015),
http://www.state.gov/secretary/remarks/2015/02/237212.htm; Arseniy Yatsenyuk in interview with Matthias
Schepp & Christoph Schult, Ukrainian Prime Minister: Putin “Needs New Annexations,” DER SPIEGEL ONLINE (Dec. 20,
2014), http://www.spiegel.de/international/europe/spiegel-interview-with-ukrainian-prime-minister-arseniy-
yatsenyuk-a-1009711.html.
30
Note, though, that the latter point receives consideration in the language of the second Minsk Protocol,
drafted and signed in early February 2015. For an English translation of the text, see Minsk Agreement on Ukraine
Crisis: Text in Full, THE TELEGRAPH (London) (Feb. 12, 2015),
http://www.telegraph.co.uk/news/worldnews/europe/ukraine/11408266/Minsk-agreement-on-Ukraine-crisis-
text-in-full.html. The first Minsk Protocol, signed in September 2014, had failed to put an end to hostilities.
institutions—can be safeguarded only through fidelity to the general norm of territorial

integrity and consistent respect for the “will of the people,” inasmuch as this is
demonstrated by a functional liberal democracy that is at least nominally dedicated to
free, fair, and regular elections. There is an important internal dimension to this vision of
self-determination, at least of the somewhat thin variety that famously found expression in
31
Article 1 of the two 1966 human rights covenants.
For a Russia that finds itself increasingly driven by predatory monopoly capitalism and a
neo-tsarist consolidation of executive authority after a prolonged period of privatization
32
and deregulation, the administration that has managed to install itself in Kiev is little
more than an unelected and essentially illegitimate regime, thoroughly incapable of
representing the interests of Ukraine’s sizeable population of ethnic Russians and Russian
nationals. Its commitment to European integration and desire to reduce its dependence
upon Russian oil and gas is threatening not simply on its own terms, particularly as Ukraine
33
is often hailed as the world’s “most significant hydrocarbon transit country,” but also
insofar as it testifies to a bolder, more fundamental attempt to repudiate what many
34
Russians regard as the country’s historical antipathy toward Western liberalism. By
effectively spurning the multibillion-dollar “action plan” treaty that Yanukovych had signed
with Putin in December 2013 and opting instead for an association agreement with the
35
European Union and a series of large loans from the International Monetary Fund, the
31
International Covenant on Economic, Social, and Cultural Rights art. 1, Dec. 16, 1966, 993 U.N.T.S. 3;
International Covenant on Civil and Political Rights art. 1, Dec. 16, 1966, 999 U.N.T.S. 171. For commentary, see
ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 47–62, 65–66 (1995).
32
On the political economy of post-Soviet Russia, see BORIS KAGARLITSKY, EMPIRE OF THE PERIPHERY: RUSSIA AND THE
WORLD SYSTEM 304–22 (Renfrey Clarke trans., 2008); THE POLITICAL ECONOMY OF RUSSIA (Neil Robinson ed., 2013);
PEKKA SUTELA, THE POLITICAL ECONOMY OF PUTIN’S RUSSIA (2012). See also Gleb Pavlovsky, Putin’s World Outlook—
Interview by Tom Parfitt, 88 NEW LEFT REV. 55 (2014).
33
INTERNATIONAL ENERGY AGENCY, UKRAINE ENERGY POLICY REVIEW 2006, at 204 (2006), quoted in MARGARITA M.
BALMACEDA, THE POLITICS OF ENERGY DEPENDENCY: UKRAINE, BELARUS, AND LITHUANIA BETWEEN DOMESTIC OLIGARCHS AND
RUSSIAN PRESSURE, 1992–2012, at 94 (2013).
34
See, e.g., Vladislav Tolstykh, Reunification of Crimea with Russia: A Russian Perspective, 13 CHIN. J. INT’L L. 879,
885–86 (2014) (arguing that Crimea was returned to its “natural state” through incorporation into Russia, and
that Ukraine “will not become a part of Europe or the Western world,” because “for this it would have to
completely give up its language, religion, history and genetic memory”).
35
For the “action plan,” see Russia Makes $15 Billion, Gas Discount Commitments to Ukraine, DEUTSCHE WELLE
(Dec. 17, 2013), http://www.dw.de/russia-makes-15-billion-gas-discount-commitments-to-ukraine/a-17303930.
For the IMF’s own account of its loans to Ukraine, see Interview with Reza Moghadam: Ukraine Unveils Reform
Program with IMF Support, IMF SURVEY (Apr. 30, 2014),
https://www.imf.org/external/pubs/ft/survey/so/2014/new043014a.htm; Interview with Poul Thomsen:
Stabilizing Ukraine’s Economy, IMF SURVEY (Sept. 2, 2014),
https://www.imf.org/external/pubs/ft/survey/so/2014/car090214a.htm. The precise size of these loans has been
Kiev administration has demonstrated in Moscow’s eyes its unwillingness to respect the
rights of ethnic Russians and Russian nationals, many of whom see themselves as politically
and economically marginalized. Though Russia had vigorously sought to contain external
self-determination during the course of its struggle in the 1990s against secessionist
movements in Chechnya and Tatarstan, and though it had made a point of imposing highly
stringent conditions on the application of any right of remedial secession in its official
36
statement regarding the Kosovo advisory proceedings, it has now thrown its weight
behind secession as a justifiable response to Kiev’s allegedly systematic, but unproven,
persecution of all those “loyal to” Russia. Comparisons with Kosovo have proven to be
especially useful here: in addition to suggesting that Crimean authorities invoked the right
to self-determination in much the same way that Ukrainian officials had during the
dissolution of the Soviet Union, Putin has accused the West of hypocrisy on matters of
secession, sidestepping the Kremlin’s own position on Kosovo in order to highlight the fact
that the United States had itself been of the view that international law does not expressly
37
prohibit unilateral declarations of independence. If unlawful, and often covert, use of
force has proven necessary to protect Russian interests, so be it. Self-determination, on
this account, is to be understood as a “BRIC” state’s potentially unlimited right to protect
its nationals and “ethnic kin” abroad.
The precise status of self-determination for those in Crimea and the Donbass who have
supported incorporation into Russia or some form of outright independence is far from
clear. Nevertheless, certain tendencies are visible. For Crimeans who have expressed
enthusiasm for Russia’s annexation of a territory that had been an autonomous region of
Ukraine since 1991, self-determination seems to be at least as much a vehicle for attracting
much-needed Russian investment—Moscow has pledged no less than $12 billion over the
the subject of some skepticism. See, e.g., Ukraine’s New Bail-Out: The Austerity to Come, THE ECONOMIST (Feb. 12,
2015), http://www.economist.com/blogs/freeexchange/2015/02/ukraines-new-bail-out-0.
36
The conditions under which any such right might be triggered “should be limited to truly extreme
circumstances, such as an outright armed attack by the parent State, threatening the very existence of the people
in question.” Written Statement by the Russian Federation (Apr. 16, 2009), 31–32, para. 88, I.C.J. Advisory
Proceedings: Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, http://www.icj-cij.org/docket/index.php?p1=3&p2=4&case=141&code=kos&p3=1.
37
Vladimir Putin, Address by President of the Russian Federation, PRESIDENT OF RUSSIA (Mar. 18, 2014),
http://eng.kremlin.ru/news/6889. For the American position during the Kosovo proceedings on the question of
whether international law regulates declarations of independence, see Written Statement of the United States of
America (Apr. 17, 2009), 50–52, I.C.J. Advisory Proceedings: Accordance with International Law of the Unilateral
Declaration of Independence in Respect of Kosovo, http://www.icj-
cij.org/docket/index.php?p1=3&p2=4&case=141&code=kos&p3=1. For some of the general implications of
Putin’s arguments, see also LAURI MÄLKSOO, RUSSIAN APPROACHES TO INTERNATIONAL LAW 2–3, 180–84 (2015).
38 39
next five years —as it is a rectification of a Khrushchev-era “administrative error.”
Similarly, when viewed from the resource-rich and industrially productive Donbass,
suspicious of anti-Russian policies and mindful of its sharp economic decline in the years
40
immediately following the Soviet Union’s collapse, self-determination is a means of
achieving not simply political autonomy but a rapid and sustained rise in the standard of
living, mainly by reorienting the regional economy toward a new Russian “empire” that is
41
able and willing to provide financial support and a steady supply of cheap natural gas.
This has engendered numerous efforts to legitimize the state-building endeavor currently
underway in what many have once again come to term “New Russia” (Novorossiya), a
deeply unstable territory crisscrossed by all manner of mercenaries and private armies,
working alternately for and against this or that rentier-turned-capitalist in a complex
42
assemblage of politically powerful holding companies. A hastily organized plebiscite was
held in Crimea in March 2014, with an overwhelming majority of voters supporting union
43
with Russia. This, in turn, served as a model for similar referendums in Donetsk and
38
Anna Andrianova, Crimea Ignores Economic Pain to Embrace Putin in New Russia Era, BLOOMBERG BUSINESS (Dec.
14, 2014), http://www.bloomberg.com/news/articles/2014-12-14/crimea-ignores-economic-pain-to-embrace-
putin-in-new-russia-era.
39
In 1954, no more than a decade after Stalin had ordered the deportation and massacre of large numbers of
Tatars and other non-Russian inhabitants of Crimea, Soviet authorities transferred responsibility for administering
the peninsula from the Russian Soviet Federative Socialist Republic to the Ukrainian Soviet Socialist Republic. This
put a nominal end to the authority that Russia had wielded over Crimea more or less continually since the late
eighteenth century, when it had conquered a Muslim Tatar state affiliated with the Ottoman Empire. For details,
see YAROSLAV BILINSKY, THE SECOND SOVIET REPUBLIC: THE UKRAINE AFTER WORLD WAR II 18–19 (1964).
40
For discussion of support throughout the Donbass—the “Ukrainian Ruhr”—for Yanukovych and the Party of
Regions, an explicitly russophone party that has now effectively been dissolved, see Ararat L. Osipian & Alexandr
L. Osipian, Why Donbass Votes for Yanukovych: Confronting the Ukrainian Orange Revolution, 14 DEMOKRATIZATSIYA
495 (2006). On the Donbass’ economic decline in the early 1990s, see Hiroaki Kuromiya, The Donbas—The Last
Frontier of Europe?, in EUROPE’S LAST FRONTIER?: BELARUS, MOLDOVA, AND UKRAINE BETWEEN RUSSIA AND THE EUROPEAN
UNION 97, 103–05 (Oliver Schmidtke & Serhy Yekelchyk eds., 2008). For useful discussion of the history and
politics of Ukraine’s various regions, see also MIKHAIL A. MOLCHANOV, POLITICAL CULTURE AND NATIONAL IDENTITY IN
RUSSIAN-UKRAINIAN RELATIONS 239–43 (2002).
41
“We Want to Join a Russian Empire”: Discussion with the Leader of the Donetsk People’s Republic, CENTER ON
GLOBAL INTERESTS (July 8, 2014), http://www.globalinterests.org/2014/07/08/we-want-to-join-a-russian-empire-
discussion-with-the-leader-of-the-donetsk-peoples-republic/. See also Thomas Grove & Gabriela Baczynska, East
Ukraine Separatists Hold Vote To Gain Legitimacy, Promise Normalcy, REUTERS (Oct. 30, 2014),
http://www.reuters.com/article/2014/10/30/us-ukraine-crisis-east-idUSKBN0IJ22G20141030.
42
For a nuanced treatment of the pro-Russian tendencies of eastern Ukrainian “business clans,” see Kuromiya,
supra note 40, at 105–07. See also Andrew Wilson & Clelia Rontoyanni, Security or Prosperity? Belarusian and
Ukrainian Choices, in SWORDS AND SUSTENANCE: THE ECONOMICS OF SECURITY IN BELARUS AND UKRAINE 23, 39–40 (Robert
Legvold & Celeste A. Wallander eds., 2004).
43
The haste with which the Crimean referendum took place is one of the grounds upon which many have
compared it unfavorably with superficially similar referendums in Scotland and Catalonia. See Brad Simpson, Self-
Luhansk in May 2014, where a significant majority in each oblast affirmed declarations of
independence. Representatives of the self-proclaimed republics of Donetsk and Luhansk
have since underscored the significance of these referendums, arguing that they are
44
representative of “popular will” and holding elections on their basis in November 2014.
Indeed, a top official from the “Donetsk People’s Republic” recently went so far as to
propose a conference of unrecognized states that would eventually culminate in a “League
of New States,” promising to issue quasi-formal invitations to Basque, Flemish, Texan, and
Venetian nationalists as part of a vague appeal to (certain) peoples seeking self-
45
determination. Even more so than in the cases of “frozen conflicts” like those in
Abkhazia, Transnistria, South Ossetia, and Nagorno Karabakh, not to mention the Turkish
Republic of Northern Cyprus and a host of other states that enjoy little or no international
recognition, self-determination in Donetsk and Luhansk would appear to be a product of
46
politico-economic opportunism no less than ethno-nationalist agitation.
At its core, the Ukraine crisis—likened by one lawyer to the nineteenth-century “Scramble
47
for Africa” —has put on display a set of rival modes of conceiving self-determination, each
buttressed by distinct class interests: Kiev’s insistence on a classical, Charter-based account
of territorial integrity and independence, expressed in a vision of national self-
determination that prioritizes a bourgeoisie’s right to “choose” Europe over Russia;
Moscow’s drive to leverage itself into greater geopolitical power through strategic
manipulation of “ethnic kin” and foreign nationals, not to mention hydrocarbon resources,
Determination in the Age of Putin, FOREIGN POLICY (Mar. 21, 2014), http://foreignpolicy.com/2014/03/21/self-
determination-in-the-age-of-putin/.
44
Donetsk, Luhansk Leaders Hold On To Positions of Self-Determination, TASS RUSSIAN NEWS AGENCY (Sept. 9, 2014),
http://tass.ru/en/world/748746.
45
Glenn Kates, Ukraine Separatists Plan “Summit of Unrecognized States,” RADIO FREE EUROPE (Jan. 29, 2015),
http://www.rferl.org/content/ukraine-separatists-summit-unrecognized-states/26820366.html. Unsurprisingly,
Kosovars were among the numerous groups not to be mentioned.
46
For a comparison of the Abkhazian and South Ossetian cases with that of Kosovo, partly with a view to
undermining widespread claims that they are of an essentially sui generis character, see Rein Müllerson,
Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and
Abkhazia, 8 CHIN. J. INT’L L. 2, 3–4, 24 (2009). See also Antonello Tancredi, Neither Authorized nor Prohibited?
Secession and International Law After Kosovo, South Ossetia and Abkhazia, 18 ITAL. Y.B. INT’L L. 37 (2008); Cedric
Ryngaert & Sven Sobrie, Recognition of States: International Law or Realpolitik? The Practice of Recognition in the
Wake of Kosovo, South Ossetia, and Abkhazia, 24 LEIDEN J. INT’L L. 467 (2011); KOSOVO: A PRECEDENT? —THE ADVISORY
OPINION AND IMPLICATIONS FOR STATEHOOD, SELF-DETERMINATION AND MINORITY RIGHTS (James Summers ed., 2011); SELF-
DETERMINATION AND SECESSION IN INTERNATIONAL LAW (Christian Walter, Antje von Ungern-Sternberg & Kavus Abushov
eds., 2014). For the view that Turkey’s invasion of Cyprus in 1974 is an illuminating analogue to Russia’s recent
actions in Crimea, see further Jure Vidmar, The Annexation of Crimea and the Boundaries of the Will of the People,
16 GERMAN L.J. 365 (2015).
47
Rein Müllerson, Ukraine: Victim of Geopolitics, 13 CHIN. J. INT’L L. 133, 138 (2014).
tethering self-determination to a program of irredentist expansion in the process; and a

variety of sub-state actors in Crimea and the Donbass, marshaling analogous “Kosovo-
style” arguments for secession against the background of what they frequently regard as a
second Cold War. It may be tempting to suggest that one or more of these positions follow
from a fundamental failure to understand the “nature” or “essence” of self-determination,
48
or perhaps even of international law generally. This, however, would be to
misunderstand self-determination, which does not admit of authoritative, genuinely
definitive interpretations, such that a given argument about self-determination could be
said to fall afoul of the settled rule. Thus, if the conflict in Ukraine has put on offer a variety
of competing approaches to self-determination, this has only affirmed the plasticity of a
concept that has always owed much of its popularity to its responsiveness to varying
49
politico-economic projects.
D. Conclusion
Self-determination has long been the object of theoretical critique, even outright dismissal.
Some have suggested that the notion of self-determination—which has many of its
modern philosophical origins in Kant’s conception of the free and self-conscious
50
individual —has played no more than a secondary role in managing decolonization and
resolving ensuing or related conflicts: it is only “once the basic decision for political
reorganization or redistribution of power has been made,” Prakash Sinha wrote in 1973,
that “the principle of self-determination is invoked to attain the result in a desirable
51
fashion.” But perhaps the most fashionable criticism is the oft-repeated claim that the
very idea of collective self-determination is circular and self-contradictory. On the one
hand, self-determination is frequently characterized as a right or principle that is capable
48
See, e.g., Anna Dolidze, How Well Does Russia Speak the Language of International Law?, OPEN DEMOCRACY (Feb.
6, 2015), https://www.opendemocracy.net/od-russia/anna-dolidze/how-well-does-russia-speak-language-of-
international-law; Anna Dolidze, The Non-Native Speakers of International Law: The Case of Russia, 15 BALT. Y.B.
INT’L L. (forthcoming 2015), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2523633 (last
visited May 1, 2015).
49
I have focused on two states (Ukraine and Russia) and one set of sub-state actors (Crimea and the self-
proclaimed “people’s republics” of Donetsk and Luhansk). I have done so on account of the fact that these actors
have been most directly involved in the conflict in Ukraine. It goes without saying, though, that the analysis can
be extended to include a variety of other actors, not least the United States and European Union.
50
Eric D. Weitz, Self-Determination: How a German Enlightenment Idea Became the Slogan of National Liberation
and a Human Right, 120 AMER. HIST. REV. 462, 469 (2015). Note, though, that there is currently no genuinely
persuasive genealogy of the concept of collective self-determination. Indeed, attempts to trace the concept’s
pedigree have tended to be rather sketchy to date. For a telling example from a doyen of international legal
studies, see Ian Brownlie, An Essay in the History of the Principle of Self-Determination, in GROTIAN SOCIETY PAPERS
1968: STUDIES IN THE HISTORY OF THE LAW OF NATIONS 90 (C. H. Alexandrowicz ed., 1970).
51
S. Prakash Sinha, Is Self-Determination Passé?, 12 COLUM. J. TRANSNAT’L L. 260, 271 (1973).
of being asserted and exercised only by a minimally cohesive and clearly identifiable
“people.” On the other hand, scholars often point out, it is only through the assertion and
exercise of this right or principle that a determinate “people” is generally understood to
come into being. As a result, the concept of collective self-determination would seem to
presuppose the existence of the very “people” its operationalization is meant to call forth.
How, after all, is one to develop a coherent account of self-determination when the
operation of any such right or principle would seem to presume the very “people” it is
52
intended to make possible in the first place?
Inasmuch as one can speak of solutions to quandaries of this kind, they must always come
in sociological form. From a strictly logical standpoint, it is difficult, if not altogether
impossible, to defend self-determination without at the very least making a serious effort
to defuse or minimize such circularities. Considered from a broadly social perspective,
though, the matter lends itself to ready explanation. Ultimately, like most other concepts
of international law, self-determination is a site of contestation, a discursive device that
serves as something of a placeholder for competing, even incommensurable, visions of
world order. What is more, insofar as such visions of world order are anchored in and
articulated by different class interests, the concept of self-determination is also a site of
class struggle. While the conceptual difficulties inherent in the idea of self-determination
have understandably attracted considerable attention for some time, its actual
operation—the way in which it mediates different class-based accounts of nationhood,
statehood, and international order—is nearly always sidelined. This is not, of course,
entirely surprising, given the default positivism of so many international lawyers, but it
certainly does result in an impoverished understanding of self-determination’s resonance.
It was in the hands of Lenin that self-determination came to be invested with the status of
a revolutionary call to arms—a force for mobilizing anti-colonialist and anti-imperialist
53
sentiment on a truly global scale. And it was the Soviet Union that reinforced and
52
For classic discussion of this quandary, see IVOR JENNINGS, THE APPROACH TO SELF-GOVERNMENT 56 (1956) (arguing
that the notion of self-determination, or “let the people decide,” is “ridiculous because the people cannot decide
until somebody decides who are the people”). I do not address here any number of other criticisms that have
been levelled against the concept of self-determination, particularly the notion of “peoplehood” upon which it is
premised. For strong discussion of the difficulty of defining “peoples” from an especially pertinent but generally
neglected perspective, see S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 100–03 (2d ed. 2004). Cf. LUIS
RODRÍGUEZ-PIÑERO, INDIGENOUS PEOPLES, POSTCOLONIALISM, AND INTERNATIONAL LAW: THE ILO REGIME (1919–1989) (2005);
GLEN SEAN COULTHARD, RED SKIN, WHITE MASKS: REJECTING THE COLONIAL POLITICS OF RECOGNITION (2014). For more
general discussion of the theoretical paradoxes of self-determination in constitutional and international theory,
see Zoran Oklopcic, The Idea of Early-Conflict Constitution-Making: the Conflict in Ukraine Beyond Territorial
Rights and Constitutional Paradoxes, 16 German L.J. 658 (2015).
53
Wilson began to lean upon a weak form of self-determination only after it became clear that subject
nationalities were interpreting demands for representative government in stronger terms than had initially been
assumed. See Cassese, supra note 31, at 14–23; cf. THOMAS D. MUSGRAVE, SELF-DETERMINATION AND NATIONAL
MINORITIES 23–24 (1997). For a broader reconstruction of the rivalry, see ARNO J. MAYER, WILSON VS. LENIN: POLITICAL
ORIGINS OF THE NEW DIPLOMACY, 1917–1918 (1964).
radicalized the demands of an already ambitious Third World during the Cold War, helping
to articulate a strong right of external self-determination in the context of national
54
liberation movements. Indeed, for both the socialist bloc and the non-aligned world,
collective self-determination—understood in the sense of economic sovereignty as well as
that of political independence—was decolonization’s most dominant point of legal
reference, far more influential and authoritative than individualistic human rights was
55
deemed to be. It is not a little ironic, then, that the new, post-Soviet Russia, supported by
its allies and proxies in Ukraine, would now make a point of positioning itself as a
champion of self-determination, though in this case by framing the concept in a
reactionary, unabashedly neo-imperial register. If nothing else, this conceptual mutation
should remind us of the elasticity of self-determination, its ability to relay and formalize,
often through a kind of “translation,” a variety of disparate grievances and aspirations. A
predominantly positivistic international law that refuses to grapple with such elasticity—
and the differential class relations it reflects and sustains—blinds itself to the real
effectiveness of self-determination, fetishizing it as part of an exercise in conceptual
analysis instead of understanding its material weight and influence.
54
See Cassese, supra note 31, at 44–45. See also JOHN QUIGLEY, SOVIET LEGAL INNOVATION AND THE LAW OF THE WESTERN
WORLD 133–71 (2007); Bill Bowring, Positivism versus Self-Determination: The Contradictions of Soviet
International Law, in INTERNATIONAL LAW ON THE LEFT: RE-EXAMINING MARXIST LEGACIES 133 (Susan Marks ed., 2008);
SCOTT NEWTON, LAW AND THE MAKING OF THE SOVIET WORLD: THE RED DEMIURGE 216–40 (2015).
55
For a strong articulation of this view, see SAMUEL MOYN, THE LAST UTOPIA: HUMAN RIGHTS IN HISTORY 84–119 (2009).
Deconstructing the Conflict in Ukraine: The Relevance of

International Law to Hybrid States and Wars
By Outi Korhonen*
A. Introduction
In Ukraine, spheres of political, military, and economic control are contested, non-
transparent, and shifting. As the Ukrainian government lost control over the rebellious
Eastern oblasts (regions) of the country, Russia denies its authority over various pro-Russian
separatists and vigorously rejects any responsibility for the abuses by the unidentified
“green men,” both before and after the annexation of Crimea. Even during the decades
before this conflict, the rule of law in Ukraine was “thin” at best. Meaningful political
control was sporadic and dispersed, often wielded by the mix of public, private, and other
shady actors occupying the grey area between a functional and a dysfunctional state. If
state actors never effectively took control over the events at the state-level during peaceful
times, it is not surprising that it is more difficult once a “hot” conflict breaks out. It is not
unreasonable to assume that Minsk agreements—signed in an effort to stop the
hemorrhaging of the conflict—will not hold if the signatories do not effectively control the
diverse public and private actors who possess the actual capacity to influence the dynamic
on the ground. Before rendering any kind of juridical judgment, the complicated political
and socioeconomic configuration of the conflict in Ukraine forces us to first confront a
factual puzzle: Who and what influence the current situation? Which concrete actors really
drive the conflict and what interests animate them?
With this in mind, this Article examines the twin phenomena of the hybridization of war
and the hybridization of states, and what they mean for international law’s relevance in the
conflict in Ukraine. With an eye on this ineluctable hybridity, this Article asks how
international lawyers should respond to the challenges posed by the blurring of
fundamental legal categories in the conflict in Ukraine—such as public/private,
state/individual, war/peace, aggression/defense, and the attendant difficulties of
identifying legitimate agents of political control.
Unlike most current approaches to the crisis in Ukraine within international law, this
Article’s method of inquiry recognizes the embeddedness of legal subjects and actors in the
social register of political struggle. Rather than accepting that international law’s relevance
hinges on its ability to satisfy “journalistic” knowledge-interests by offering to gently civilize
*
Outi Korhonen is Chair Professor of international law, University of Turku.
2015 Deconstructing the Conflict 453
political conflicts on the one hand—climaxing on the attributions of blame and punishment
or, on the other hand, on its impotence to deliver either—this Article suggests that the
inquiry start from a description of conflicted subjects, their stakes in the conflict, and the
1
underlying ideological and structural frames that inform them with an aim to unearth the
potential and the limitations of international law in responding to the experience of a
diverse set of relevant political and socioeconomic actors. In doing so, it joins the calls for
methodological renewal in international and comparative laws that have emphasized
embeddedness, embodiment, and rich contexts and challenged traditional assumptions of
realism and objectivism. As a classic feminist text puts it:
[S]ituated knowledges require that the object of

knowledge be pictured as an actor and agent, not as a
screen a ground or a resource, never finally as a slave to
the master that closes of the dialectic in his unique
agency and authorship of “objective” knowledge . . . .
Indeed, coming to terms with the agency of the
“objects” studied is the only way to avoid gross error
and false knowledges of many kinds . . . . 2
Rather than a doctrinal exegesis, one should approach international legal analysis through
the lens of situational critique: A form of interdisciplinary and comparative legal studies
that emphasizes embeddedness and situatedness of their objects and subjects.
B. Crisis in Ukraine and International Reactions
The build-up to the crisis in Ukraine was not as quick and spectacular as the international
reactions may have suggested. Its origins are deeper and more diverse. On the one hand,
the dire socioeconomic situation and the disappointment with the results of transition
contributed to the political fragility of social peace. Before the uprising, for example, the
basic socioeconomic indicators put Ukraine within the last quartile among the countries of
the world in terms of alcoholism, drug abuse, orphans, HIV infection rates, corruption,
3
respect for basic freedoms, alienation, and general hopelessness. On the other hand, the
complex constellation of external and internal political and economic rivalries and
1
See generally, Umut Özsu, Ukraine, International Law, and the Political Economy of Self-Determination, 16
GERMAN L.J. 434 (2015) (examining these in an exemplary manner). I thank Anne Orford for the methodological
discussion that made this explicit in Turku April 27, 2015. See also Anne Orford, In Praise of Description, 25 LEIDEN
J. INT’L L. 609–25 (2012).
2
Donna Haraway, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective,
14 FEMINIST STUDS. 575, 592–93 (1988).
3
See, e.g., KARINA KOROSTELINA, CONSTRUCTING THE NARRATIVES OF IDENTITY AND POWER, SELF-IMAGINATION IN A YOUNG
UKRAINIAN NATION 81 (2013).
affiliations that provided a modicum of stability in the country before the conflict was
tenuous and fragile. Even before the conflict, the public and the private, the state, the
regions, and the businesses—as well as informal actors of various sizes—have fiercely
struggled for control over people, territory, infrastructure, and other resources.
Beyond concrete Russian actions, one could also view the escalation into internal and inter-
state war as the overt manifestation of a more enduring political predicament. To not dwell
on a legalistic assessment of the situation that does little to stop fighting and killing—that
is, restating the rule that the use of force is illegal—we must dive into the situational
conditions of the subjects between whom the conflict-driving problems exist.
I. Doctrinal Responses
The overwhelming majority of first-hand broadcasted reactions by international lawyers to

the Ukrainian crisis condemned the secession and the annexation of Crimea as a form of
Russian aggression, illegal both under the Ukrainian constitution as well as under
4
international law. Irrespective of this dominant narrative, some reactions compared the
annexation of Crimea to Northern Cyprus, Aaland Islands, and—most notably—to Kosovo’s
recent unilateral declaration of independence. In that later regard, some international
lawyers feared that Kosovo set a precedent for a secessionist slippery slope, while others
used doctrinal, political, and historical arguments to distinguish the case of Crimea from the
5
similar previous cases of unilateral secession. Within the debates in international law, the
Russian claims of remedial self-determination have generally been rejected. Despite
Russian claims, almost all lawyers agree that there had been no systematic violent attacks
6
on ethnic Russians before the invasion. Establishing direct Russian control over the rebels
in the East has been more difficult. Although the general outcry at the downing of the
Malaysian Airlines flight MH17 spurred many accusations of terrorism and the Russia’s
sponsorship of it, there was no straightforward way to determine effective or sufficient
control—the knowledge of purpose—to use the attack against civilians. As Barry Kellman
argued:
4
See OXFORD PUB. INT’L L., Debate Map: Ukraine Use of Force (2014), http://opil.ouplaw.com/page/ukraine-use-of-
force-debate-map (last visited Aug. 3, 2014).
5
See Steven Tierney, Sovereignty and Crimea: How Referendum Democracy Complicates Constituent Power in
Multinational Societies, 16 GERMAN L.J. 523, 527–28, 536 (2015).
6
See OSCE (HCNM), HUMAN RIGHTS ASSESSMENT MISSION IN UKRAINE 9 (May 12, 2014),
http://www.osce.org/odihr/118476?download=true (“No increase in the manifestation of intolerance or
escalation of violence against the Russian-speaking population was observed in the [visited] regions . . . .”); see
also Brad R. Roth, The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention, 16 GERMAN
L.J. 384 (2015).
Under international criminal law, to prosecute the

missile providers would require a finding of aiding and
abetting—the missile providers would have had to have
appreciated that their actions meaningfully contributed
to the crime’s commission. Yet, to hold a missile
provider responsible for international crimes committed
with its weapons would be virtually unprecedented.7
These quick snapshots demonstrate the modus operandi of mainstream international legal
analysis in the context of an acute unfolding crisis. First, these snapshots identify what the
rules are, who obeys and who violates them, and what are the available sanctions. Second,
they seek to apply rules and doctrines to the publicized events taking subjects, their
constitutions, borders, and other characteristics, as unexamined givens.
When international actors disregard rules, and when international legal sanctions do not
produce desired effects, international lawyers face the charge of their irrelevance.
International law is damasked as a mushy field for formalistic nerds who are out of touch
8
with the real world of machoistic power politics. At that point, the media, other disciplines,
and some lawyers themselves, repeat the old Austinian charge: International law is not
9
really law. And to a certain extent, there is some truth to that charge. An analysis without
questioning whether actors and events correspond in any proximity to the assumptions
embedded in the traditional doctrinal definitions—of states, belligerents, and internal
conflicts—produces responses that are mostly too general and abstract to make a
10
difference, or command compliance, in a “hot” crisis. The modest doctrinal response to
such Austinian anxieties is well known: Even violators grant that they are not acting in a
rule-free space. The modest defense of international law’s relevance consists in pointing
that even Russian authorities, like those of other superpowers, tend to invoke international
7
See Barry Kellman, MH17 and the Missile Threat to Aviation, 18 ASIL INSIGHTS (2014),
http://www.asil.org/insights/volume/18/issue/19/mh17-and-missile-threat-aviation (last visited June 15, 2015)
(stating that the make/country of origin of the arms is not sufficient to prove state responsibility in the
circumstances of the international arms trade and smuggling today).
8
See Eric Posner, Russia’s Military Intervention in Ukraine: International Law Implications,
http://ericposner.com/russias-military-intervention-in-ukraine-international-law-implications/ (last visited Jan.
15, 2015) (associating irrelevance based on enforcement deficit critique on international law in Ukraine crisis).
9
Austin has been discussed by many as the progenitor of the idea that without efficient enforcement a system
cannot be properly called legal. According to the command theory of law, international law could not be regarded
as law at all. Austin was criticized by H.L.A. Hart, who also had reservations about the legal quality of international
law. See, e.g., Mehrdad Payandeh, The Concept of International Law in the Jurisprudence of H.L.A. Hart, 21 EUR. J.
INT’L L. 967 § B (2010).
10
See Boris M. Mamlyuk, The Ukraine Crisis, Cold War II, and International Law, 16 GERMAN L.J. 479, 515 (2015)
(unraveling the concept of Cold War and what its meaning structures entail in a precise and highly insightful
discussion).
legal rules—right of self-determination, right to offer humanitarian relief, intervention by

invitation or consent, pre-emptive self-defense—as proof that international law continues
11
to matter in the conflict in Ukraine.
II. Relevance Beyond Apology
Should international lawyers satisfy themselves with this explanation? Ukraine and Crimea
are perhaps the only glaring examples of many other conflicts, frozen and active, where
doctrinal legal analysis has contributed little in achieving a fair and lasting political
settlement. To say that vigorous denunciations of contemporary violations of the norms of
international law may rule buttresses compliance with the central tenets of international
legal order in the long run is a poor consolation to the present-day victims of the conflict.
Instead of focusing its gaze exclusively on the long run, international legal analysis should
devote its energy towards facilitating peaceful political settlements, here and now. From
this perspective, it is unhelpful to assume that conflicting parties are “bad men” who simply
lack political will to comply with the norms of international law, or are otherwise acting in
bad faith. Such everyday “evilization” is an unproductive start for conflict resolution.
In order to obtain a more accurate map of the conflict useful in the pursuit of its resolution,
international lawyers need to rely on an updated understanding of the use of force and its
concrete users. Instead of doctrinal interpretations of international law, they should look
more closely at the conditions within which the subjects, actors, and their actions are
embedded and examine how the war itself is constructed as a legal concept and how is it
12
legally managed. Thus, the relevance of law for the conflict in Ukraine should not be seen
as exclusively, or even dominantly, dependent on the concrete intensity of the conflict, but
rather on the fit of the analytical tools, instruments, and proposals that are used to resolve
13
political conflict. It may be that the situation is not aggravated by the “bad men” but
rather, the bad fit of our conceptual tools with the corresponding situation makes law seem
irrelevant. Before international law can aspire to speak constructively to the conflict in
question, we must first uncover relevant details and outline relevant ideational structures
that subtly or not so subtly frame the conflict, starting with the way in which law frames
our understanding of war.
C. Hybrid War and Law
11
See OXFORD PUB. INT’L L., supra note 4 (stating defenses of international law’s significance).
12
See DAVID KENNEDY, OF WAR AND LAW (2006) (noting that David Kennedy has thus been right to characterize
modern war as lawfare).
13
See Mamlyuk, supra note 10 (demonstrating that one needs an analytical description on a larger scale, probing
the deeper layers of the conflict, and, in more detail).
The way we imagine war is simplistic and thus problematic. We often imagine traditional
wars as conflicts of armies dressed in colorful uniforms clashing on open plains and new
wars as asymmetric battles in real and cyber jungles, waged by camouflaged soldiers,
undercover agents, and urban guerilla. Although trends have changed, the history of war is
14
far from a linear progression from the first to the second image. Whatever its history,
contemporary news-threshold hostilities increasingly relate to state failure, enduring large-
scale social injustice, complex humanitarian emergencies, organized crime,
social/economic/natural disasters, vestiges of neo-colonialism, or competition over valued
15
natural resources.
What in part obfuscates such finer-grained picture of war is the law itself. As David Kennedy
rightly observed, an “increasing continuity between war and peace, [is simultaneously
16
accompanied by a] continued rhetorical assertion of their distinctiveness.” For Kennedy,
“Warfare has become a modern legal institution . . . . Law has built practical as well as the
rhetorical bridges between war and peace, and is the stuff of their connection and
17
differentiation.” Even when legalization of warfare has turned war-making into another
bureaucratic effort, placing it on the same continuum with peace, the legal doctrine has
18
continued to assume their radical distinctiveness. Being cognizant of this structuring role
of law should empower us to see more clearly its essential hybridity most clearly on display
in the conflict in Ukraine.
Roughly a year before the crisis in Ukraine became news, recently appointed Chief of
General Staff of the Armed Forces of the Russia Valery Gerasimov spoke and wrote on the
conflicts in the Middle East, identifying them as exemplars of contemporary hybrid warfare:
One in which the distinctions between war and peace, combatants and non-combatants,
and aggression and defense blur, and territorial fronts give way to economic, industrial,
technological, trade, media, energy supply, cyber-spatial, and other overt and covert means
19
of hostile engagement. In contemporary hybrid wars, political, economic, informational,
humanitarian, and other non-military measures blend into, precede, or substitute
traditional uses of force. They may be indistinguishable from hyper-competition, large-scale
14
MARY KALDOR, NEW AND OLD WARS: ORGANIZED VIOLENCE IN GLOBAL ERA (1999).
15
OUTI KORHONEN & JUTTA GRAS, INTERNATIONAL GOVERNANCE IN POST-CONFLICT SITUATIONS (2001).
16
KENNEDY, supra note 12, at 5.
17
Id.
18
Id.
19
VPK NEWS NO. 8, Feb. 5, 2013, http://vpk-news.ru/sites/default/files/pdf/VPK_08_476.pdf (last visited June 15,
2015); Sam Jones, Ukraine: Russia’s New Art of War, FINANCIAL TIMES, Aug. 28, 2014,
http://www.ft.com/intl/cms/s/2/ea5e82fa-2e0c-11e4-b760-00144feabdc0.html#axzz3QDUHEgwh (last visited
June 15, 2015).
cyber-espionage, and underhand encouragement and control of interstate shadow

economy. In a formulation that comes not from Russia, but from the West,
hybrid wars blend the lethality of state conflict with the

fanatical and protracted fervor of irregular warfare. In
such conflicts, future adversaries (states, state-
sponsored groups, or self-funded actors) will exploit
access to modern military capabilities, including
encrypted command systems, man-portable air-to-
surface missiles, and other modern lethal systems, as
well as promote protracted insurgencies that employ
ambushes, improvised explosive devices (IEDs), and
coercive assassinations. This could include states
blending high-tech capabilities such as antisatellite
weapons with terrorism and cyber warfare directed
against financial targets.20
The reason why hybridity of conflict remains only partially recognized—mostly by the
professionals and the specialists—should not be attributed only to the way in which law, as
Kennedy rightly stresses, structures the binary between war and peace. Beyond the
structuring role of law, there is our political imaginary that still, in large part, sees states as
21
Waltzian “billiard balls” whose inner workings remain obfuscated by thick and
impenetrable shells. To embrace the fact of hybridity, and set the stage for a more
productive engagement of international law, we need to admit that states’ domestic
governance, political independence, and their entire constitutional order may in fact be
shallow and formal, sitting on top of other, more robust layers of sociopolitical and
22
socioeconomic control, organization, and distribution. It follows that state actors may
wage hybrid wars for years underneath a porous and fragile—rather than a hard—surface
of a sovereign state. Despite the fantasies of doctrinal approaches to international law that
20
Frank Hoffman, Hybrid Warfare and Challenges, 52 JOINT FORCE Q., 34, 37 (2009). Western military strategists
had also discussed new wars, asymmetry, compound strategies, and hybrid wars, particularly in reference to the
Middle East.
21
The billiard-ball-theory of states as units is associated with the neo-Realism of Kenneth Waltz, in particular, in
KENNETH WALTZ, THEORY OF INTERNATIONAL POLITICS 99 (1979); although the structural causes of conflict in the
international system are part of Waltz’s theory, the analysis here opposes the neo-realist take and posits that
states should be understood as non-unitary actors with diffused rather than tightly shut borders and cultural
spaces.
22
In the Western media, the hybridity was suppressed by making ominous references to the Franco-British
appeasement policies and the traumas of the 1930s. Owen Wilson, David Cameron Warns of “Appeasing Putin
Like Hitler,” GUARDIAN, http://www.theguardian.com/politics/2014/sep/02/david-cameron-warns-appeasing-
putin-ukraine-hitler (last visited Jan. 28, 2015) (criticizing the cynicisms of the comparison and refers to reports of
off-record discussions both between EU Commission President Barroso and President Putin, and those among the
Western leaders in the Nato summit in September 2014).
conjure states as billiard balls and impenetrable spaces, overwhelming evidence points to
the contrary: States are artificial constructs, not billiard-ball-like or human-like. Rather than
seeing them “as units,” international lawyers should accept their polymorphous, porous,
and non-Unitarian nature, and instead of approaching them generically, accept the diversity
23
of ways in which they organize and manage social, political, and economic power.
Hybrid wars exploit the incommensurability and polymorphism that the international—
legal—system partially suppresses under the rubric of sovereign statehood and partially
allows by carving out limited legal spaces for non-governmental organizations,
multinational corporations, and individuals. Hybrid wars adjust their methods given this
morphology of legal space and according to their concrete objectives. Instead of focusing
exclusively on achieving military victory, they seek to gain control and subjugate the enemy
through political, economic, informational, humanitarian, and other measures.
In that regard, Gerasimov’s doctrine emphasizes the significance of new information and
communication technologies (ICT). While modern ICT does away with the spatial, temporal,
and information gaps between the forces on the field, military command and state
administration—not to mention organs of military allies or alliances— it also does away
with the distinctions between strategic, operational, and tactical levels and between
24
offensive and defensive operations. Furthermore, in an asymmetric war, special
operations, extending over to the recruitment of opposition groups within the adversary’s
political space, radically downplay the idea of war as the clash of armies that can be clearly
distinguished by nationality, ethnicity, origin, or at least military uniform. It further destroys
the idea of physical frontlines and, instead, extends hostilities to geographic and non-
25
geographic theaters ever less distinguishable from civilian spaces.
To insist on the hybridity of warfare is also to recognize that individuals within the
institutional actors also play different roles, wear different hats, have conflicting affiliations,
loyalties, motivations, identity traits, and genuine links, even if they act in the name of
juridical persons “approved” by international law. This insight is by no means new; famous
Clausewitzian ideas have long posited the artificial boundary between political, military,
23
See, e.g., Georg Sørensen, States Are Not “Like Units”: Types of State and Forms of Anarchy in the Present
International System, 6 J. POL. PHIL. 79, 79–81 (1998).
24
Id.; see also, Hoffman, supra note 20, at 37.
25
Id. Still, hybrid wars are not reducible to anarchy. While methods of such wars constantly transform through the
reciprocal exploitation and fueling of the development of cutting edge technologies for war, Gerasimov traced the
hybrid war mindset back to U.S. tactics in Desert Storm but also to partisans in World War II, and Soviet methods
in Northern Caucasus and Afghanistan; whereas, Hoffman made comparisons even with certain battles in the
American Civil War.
26
and other modes of struggle as a matter of strategic concern. For our purposes, it is more
27
important to insist on the contextual nature and fluidity of hybrid warfare and which
makes conventional doctrinal conclusions difficult for epistemic, interpretive, and political
reasons. The above-referenced discussion presents three concrete difficulties.
The first difficulty concerns increasingly blurred distinctions. Contemporary, public

international law in general, and humanitarian law in particular, rely on our ability to
distinguish public from private, state officials from non-state actors, combatants from
28
civilians, and military from non-military engagement. The traditional doctrinal approach
experiences difficulty drawing bright lines in the context of a hybrid war that thrives
precisely on blurring such distinctions.
The second difficulty concerns recognizing compliance. The emergence of positive rules
always lags behind the development of the new methods of warfare, which by necessity
engender new patterns of behavior, and in turn give rise to the questions of what
constitutes compliance with international law in particular cases. When actors, theatres,
methods, and modes of warfare rapidly change, judging compliance requires a level of
expertise that cannot be acquired quickly or practiced without extensive training or without
the knowledge of the contextual background. Certain incidents in the Russo-Ukrainian
relations over the past decade, such as cyber attacks, espionage, hostile corporate
takeovers, or wintertime gas-cuts, can be interpreted either as systematic acts of hybrid
war or as merely unsavory, but nonetheless legal, incidents in the interaction among
sovereign states. Different interpretations place them under different legal regimes and
render different outcomes when it comes to judging compliance with international law.
Finally, the doctrinal project in international law cannot productively approach hybrid wars
because it has no means to account for, both historically as contemporaneously, global and
local asymmetries of political and economic power. As products of Western political
history, international law of war and humanitarian law are rightly seen as privileging
customs, industries, levels of development, resources, and social concerns of those who
have historically promulgated them, rather than the international community as a whole.
The panoramic view of international legal order discloses a systemic asymmetry between
the “haves” and the “have-nots,” not only in the socioeconomic sphere but also in the
arena of armed conflict.
26
See, e.g., COLIN GRAY, STRATEGY AND HISTORY, ESSAYS ON THEORY AND PRACTICE 185 (2006) (citing Clausewitz and Bull)
(“War, its threat and actuality, is an instrument of policy.”).
27
Contrast Andreas Paulus & Mindia Vashakmadze, Asymmetrical War and the Notion of Armed Conflict—A
Tentative Conceptualization, 91 REV. RED CROSS 95 (2009), with DAVID KILCULLEN, OUT OF THE MOUNTAINS: THE COMING
AGE OF THE URBAN GUERRILLA (2013), and Saskia Sassen, When the City Itself Becomes a Technology of War, 27
THEORY, CULTURE & SOC’Y 33 (2010).
28
Paulus & Vashakmadze, supra note 27, at 99–100.
Insurgent, guerilla, and revolutionary struggles are the ground-level manifestations of

asymmetrical conflict between asymmetrical entities. In fact, one may say that “irregular”
or “dirty warfare” are other derogatory terms used by the “haves” to delegitimize the
29
justice struggles of the “have-nots." Rendering these asymmetries illegible from the
perspective of international law is of course possible and may indeed serve important
30
valuable aspirations, as the article of Brad Roth in this issue forcefully argues. But our
decision concerning whether to subscribe to making global power differentials irrelevant
for the project of international law must be predicated, as Zoran Oklopcic argued in his
piece, on—among other things—an independent judgment about whether international
31
legal order really contributes to such goals.
D. Hybridized Subject(s): The Case of Ukraine
The previous discussion demonstrates that the phenomenon of hybridity cannot be

constrained only to the phenomenon of war. If war strategies are hybrid, so are the actors
who support them and are affected by them. The picture of the state that emerged from
the discussion of hybrid warfare is a far cry from a billiard-ball-like “national unit,” and
instead resembles the amorphous field of volatile political and socioeconomic competition
32
between more salient, and ultimately decisive, competing actors.
The fluidity of the structure of the Ukrainian state and political economy defies the
identification of the absolute character of its dividing lines, whether public or private,
national or international. Sometimes national borders serve to protect the essential
interests of powerful actors. Sometimes powerful actors do better for themselves by acting
through their multinational networks, at times making use of formal law and informal rules,
sometimes making use of formal law, and sometimes informal rules. Within such a fluid
system, actors engage in internal and international competition and “diplomacy”—or
haggling—that may be compared with that of medieval city-states.
Even prior to the outbreak of the conflict, the reality of political life in Ukraine complicated
and undermined the fantasies of a liberal democratic and Unitarian state as an ultimate
29
For example, the actions of Palestinian suicide bombers are often juxtaposed to the vast technological
superiority of the Israeli army; the conflicting units are different and, therefore, the tactics are also available.
30
See generally, Brad Roth, The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention,
16 GERMAN L.J. 384 (2015).
31
See Zoran Oklopcic, The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial
Rights and Constitutional Paradoxes, 16 GERMAN L.J. 658, 670 (2015).
32
From that perspective, nations indeed present themselves as “imagined communities.” BENEDICT ANDERSON,
IMAGINED COMMUNITIES; REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (1982).
destination of global historical necessity. For astute sociological and anthropological

observers of the region, such description is hardly surprising. It is worth quoting extensively
from Janine Wedel’s penetrating analysis, which already in 2001 pre-figured important
dimensions of the conflict:
Under post-socialist transformations, much political-

economic influence . . . accrued to those who skillfully
blend, equivocate, mediate, and otherwise work the
spheres of state and private, bureaucracy and market,
and legal and illegal . . . . Political-economic influence
[became] precisely . . . the “control of the interface
between public and private”. . . . [M]any outcomes, such
as the distribution and ownership of resources, [were]
shaped by struggles [to steer] at the state-private nexus.
[As a consequence] informal groups and networks
operate in the multiple domains of politics, economics,
and law. [T]he state-private distinction [is] fluid,
subdivided, overlapping, or otherwise obscure. [Also]
spheres within and around the state are flexible and
fluid. They are situationally and even fleetingly activated,
deactivated, and otherwise molded by actors operating
under various configurations of state and private rubrics
who employ state-ness and private-ness strategically to
achieve individual, group, and even official goals.
Structure is malleable.33
Equally, as Viatcheslav Avioutskii argued:
Ukrainian administrative system is strongly intertwined

with the private sector. Most business groups succeeded
in “privatizing” strategic administrative posts or bodies.
They influence state policy-making through legislative
bodies [such as] [Rada, regional and municipal councils].
The line dividing private business and state affairs has
become unclear and floating. . . . [T]he state has been
privatized.34
33
Janine Wedel, Corruption and Organized Crime in Post-Communist States: New Ways of Manifesting Old
Patterns, 7 TRENDS IN ORGANIZED CRIME 3, 4–5, 18 (2001).
34
Viatcheslav Avioutskii, The Consolidation of Ukrainian Business Clans, 1 REVUE INTERNATIONALE ECONOMIQUE 119,
141 (2011).
While the international legal subjectivity of a state does not vanish, its public sphere is half-
privatized, in turn, privatizing the central markers of its sovereignty: Domestic policing and
international war-making. “Privatization” or state-capture, however, does not have to
mean an extinguishment of public action; it can be understood as one of the alternating
strategies chosen by powerful actors within an existing state. Equally, those who have
“captured” the state may exploit different power strategies in external relations that
depend on the internal constellation of power, rather than on their formal status—party,
35
IGO, coalition.
In addition to being a soft, non-unitary, privatized or captured state, Ukraine has been
described as a “clan” and a fragmented state. The Ukrainian state is fragmented into
regions which, through their differing histories, have given rise to political-economic-
cultural “clans,” defined as much through blood lines, but more so through original cultural-
historical affiliations within relatively circumscribed localities. Clans have been loosely
identified to one of the provinces of present day Ukraine—from Lvivian Ukrainians with
historical ties to the Austro-Hungarian Empire and the Polish-Lithuanian Kingdom, the
Crimeans with their peculiar mix of Byzantine, Khazar, Tatar, Ottoman, and Russian imperial
heritage, to Kievan Ukrainians tracing their progeny to the Medieval city state of Kievan
Rus, which is equally important to the nationalistic narrative of Russia.
In highlighting the role of “clans,” however, we should not over-emphasize it. The conflict in
36
Ukraine is not primarily ethnic, any more than in the Balkans or the Middle East. Ukrainian
internal divisions cannot be reduced to local affiliations, political ideologies, or ultimately
37
economic interests. The conflict in Ukraine is not an incarnation of another “oil war.”
Because the concept of “clan” implies ethnicity, a more precise and inclusive analytical lens
would be the term of an “interest grouping.” Therefore, present day linguistic and religious
lines alone would support such clan-divisions only tentatively.
The formation of political affiliations of ethnic groups in Ukraine has been intertwined with
the competing imperial expansion over the course of centuries, which were frequently
accompanied by brutal population transfers and deportations among the domicile
populations. Historically, the most momentous amongst them were Catherine the Great’s
transfers of Russians, Bulgarians, Armenians, and Germans to the Black Sea ports and the
Soviet deportations of the Tatars from Crimea and the Cossacks of Western and Central
Ukraine during Stalin’s reign, thus destroying the possibility of most clans to claim
35
Martti Koskenniemi, International Law: Between Fragmentation and Constitutionalism, pt. 10 (2006),
http://www.helsinki.fi/eci/Publications/Koskenniemi/MCanberra-06c.pdf.
36
See generally, OUTI KORHONEN & JUTTA GRAS, INTERNATIONAL GOVERNANCE IN POST-CONFLICT SITUATIONS (2001).
37
See MARY KALDOR, TERRY LYNN KARL & YAHIA SAID, OIL WARS (2007) (describing a theory of coincidence of a new war
in the so-called petro-states, including Russia).
uninterrupted dominion in the history of any particular region. Among other oblasts, the
Autonomous Republic of Crimea, annexed to Ukraine by Khruschev in 1954, had a special
38
status—the city of Sevastopol also had its own status provision in the 1996 Constitution.
The dissolution of the Soviet Union also brought about further changes in the intra-clan
dynamic. The breakup of the Soviet Union spurred “dynamic competition among regional
clans and crystallized ... [into] a ‘totalitarian clan’ system, in which . . . ‘power belongs to
39
several clans, which can alternate at power by nominating their totalitarian dictator.’ ”
After the dissolution of the Soviet Union, “clans” have evolved from their previous historical
forms, becoming increasingly complex actors and contributing to the formation of Ukraine
40
as system as an “oligarchic democracy.” In the post-Soviet space, those oligarchic
groupings include dynasties, blocs, cliques, financial industrial groups (FIGs), and the more
or less organized adherents of meta-political ideologies (Ukrainian Orangists versus the
Blues). According to Oleksandr Turchynov, Ukrainian interest groupings can be further
divided into “central administrative-economic groups, regional administrative-economic
groups or foreign administrative-economic groups . . . [some being] connected to the
41
criminal world” in a variety of more and less overt and covert ways.
The complex constellation of cooperation and conflict among these groups undermines the
schematic picture of the conflict in Ukraine as a simple two-sided conflict between Russia
and Ukraine and their political and economic satellites. Rather than a national or
international “us” versus “them” situation, there is a multitude of divisions and interests in
the conflict(s) and it is utterly misleading to portray it as a soccer match. The complex
political picture may be both the reason for, as well as the outcome of, the hybrid war
42
strategies, currently in play.
38
The territorial structure of Ukraine as prescribed in the Constitution of 1996 was influenced by the peculiarities
of history and the constant contestation by Russia over Crimea and Sevastopol. Thus, article 133 provided that
Ukraine is composed of 25 oblasts (provinces), one Autonomous Republic (Crimea), and two cities with special
status (Sevastopol and Kiev). Despite Khrushchev’s grant of Crimea to Ukraine, during Soviet times and beyond,
Crimea and Sevastopol were also mentioned in the various Constitutions of the Soviet Union and, later, the
Russian Federation.
39
Wedel, supra note 33, at 33.
40
Ironically, its clan structure made it appear more pluralist than, for example, Russia and Belarus. See SLAWOMIR
MATUSZAK, THE OLIGARCHIC DEMOCRACY: THE INFLUENCE OF BUSINESS GROUPS ON UKRAINIAN POLITICS 74, 78 (2012).
41
Wedel, supra note 33, at 33 (referring to Oleksandr Turchynov (1996)). On the exploits of the criminal networks,
see references also in Helene Lavoix, Ukraine Crisis: State of Play—The Oligarchs, THE RED (TEAM) ANALYSIS SOCIETY
(June 13, 2014), https://www.redanalysis.org/2014/06/13/ukraine-state-play-oligarchs/ (last visited Jan. 31,
2015). See also MATUSZAK, supra note 40.
42
See the arrow-pierced images of Ukraine business and political relations in, for example, Lavoix, supra note 41,
and Avioutskii, supra note 34, at 119–41.
To illustrate it, one may look at the Ukrainian interests groupings more closely, which wield
exceptional economic and political power, and where the six largest among them make up
43
“almost 18% of the Ukrainian GDP.” More specifically, commentators identify three to
seven highly powerful groupings in Ukraine, among which the most regionally embedded
and also most influential ones are two of the richest groupings in the provinces of
44
Dniepropetrovsk and Donetsk.
While the central Dniepropetrovsk oblast (province) is the main seat of interest groupings
whose rivalry has resulted in various splits and mergers both within the region and outside
of it, the Eastern “Donetsk oblast is dominated mainly by one political force (Party of
45
Regions) and by one business group (SCM).” System Capital Management (SCM) is also
one of the most exclusively owned groups, belonging to the Ukrainian billionaire, Rinat
Akhmetov, whose net worth before the conflict was estimated between ten to twenty-five
46
billion U.S. dollars. While seen as deeply Donetskian, the “SCM group operates in 14
Ukrainian regions and 6 other countries [namely] [the] U.S., Russia, Italy, Bulgaria,
47
Switzerland [and] Great Britain.”
Notwithstanding nominal ventures in Russia, the complicated relations in the post-Soviet

space led SCM to the early choice to guard against co-operation because of the many
48
potential conflicts and the fear of the comparative advantage of the Russian business.
SCM built its economic and financial clout, like that of many other groups, on the capture of
strategically high-valued former state assets (e.g. steel industry) after the breakup of the
Soviet Union. While SCM’s core business is steel-making (from mining to industrial
products), it also owns some 200 companies including banks, sea-port operations, energy
plants, media, mobile networks, real estate, agriculture, transportation, and
49
pharmaceutical industry. During Yanukovic’s presidency, the SCM-led interest grouping
was the most quickly expanding one and in the war its infrastructure is among the worst
hit.
43
Avioutskii, supra note 34, at 120–21, 140–41.
44
Caveat: By taking these two oblasts (provinces/regions) and their groupings as examples I risk implying that
they are the decisive forces of the conflict. Such implication is not intended. On the contrary, the choosing of
these examples is not based on any sociological or political evidence of their superior significance vis-á-vis the
various other regions and influence groupings around Ukraine.
45
Avioutskii, supra note 34.
46
Id. at 125–29; see also Lavoix, supra note 41.
47
Lavoix, supra note 41.
48
Avioutskii, supra note 34, at 118–19.
49
See SYSTEM CAPITAL MANAGEMENT, http://www.scmholding.com/en/business/list/ (last visited June 1, 2015).
Unlike other groupings, however, SCM has been overtly and directly involved in politics
50
through its own party, the Party of Regions (PR). As the largest Ukrainian economic actor,
SCM also controlled “[t]hrough informal networking and minority shareholdings . . . , most
51
middle-sized assets situated in the oblast.” It was the largest employer in Donetsk oblast
and the sole employer in many cities, having on its payroll some 200,000 employees. SCM’s
influence depended not only on its monopoly, but also on its economic success, which it
then used as a sociopolitical leverage. This economic success enabled it to pay higher than
the Ukrainian average salaries to its employees and finance a variety of communal, housing,
52
and other beneficial projects.
In addition to SCM, Donetsk oblast is the seat of a number of autonomous businesses some
of which can be characterized as “travelling companions” of the SCM-led grouping and
others as dissidents wielding their support to Orange forces and political parties. The most
notable opposition to the SCM-led grouping in the region identified itself with the ISD
group (Industrial Union of Donbass), which was sold to Russian parties, later renationalized
and taken over by SCM in the 2000s. Outside the SCM’s clout, there are also oligarchs such
as Yuriy Boyko, at one time the Minister of Fuel and Energy in Yanukovych’s cabinet (2002–
2004) (estimated net worth 2.6 billion U.S.D.), and Serhiy Taruta, the founder of ICM (2.6
billion U.S.D.), the initial war-time governor of Donetsk and recently replaced by President
53
Poroshenko. According to Avioutskii, “[i]n comparison to the Dniepropetrovsk clans and
other minor regional groups, the influence of the Donetsk businessmen is better structured
and constant . . . [deriving] not only [from] a very high concentration of industrial and
mining assets in this oblast, but also [from] a peculiar organization of their ‘channel for
54
influence.’ ” In contrast to the more common mode of wielding political influence through
the funding of various parties and candidates, the SCM leaders are formally engaged in
politics through the Party of Regions. In many ways, the PR has acquired the characteristics
of a “business project” and played a major role in changing Ukrainian politics in two ways:
First, it has weaned power away from the regional political clans in the Western and central
Ukraine, and second, it has helped to shift even more power towards the business
50
Id. at 126–29.
51
Id.
52
Press Release, System Capital Management, SCM’s Profit-Maker (Oct. 28, 2011) (on file with the author).
According to SCM it pays twice as high salaries as other companies. See id., Interview with CEO Oleg Popov,
http://www.scmholding.com/en/media-centre/coverage/view/300/ (last visited Jan. 31, 2015).
53
See Avioutskii, supra note 34, at 127–29.
54
Id. at 139.
55
community, turning it, as Matuszak describes, into a “platform” from which industrial
56
oligarchs strike deals.
Central Dniepropetrovsk oblast and its politicians are far better known in the West than the
Eastern ones because of their role both during the Soviet times and immediately thereafter.
The so-called Kuchma clan, Brezhnev’s Dniepropetrovsk clan, and Khrushschev’s circle all
57
gained influence through controlling major assets in the military-industrial complex, the
model which the SCM also followed in the east. The Dniepropetrovsk elite’s historical
importance has spurned fierce rivalries. When Leonid Kuchma, a former communist party
chief, was elected president of Ukraine in 1994—an office that he held until 2005—there
was a major breakup in the elite into “several competing and hostile groups seeking to
58
control resources through the privatization process and the control of trade flows.” These
include the PrivatBank grouping associated with tycoons Igor Kolomoisky (USD 5bn) and
Gennady Bogolyubov (USD 4,7bn) and the Interpipe grouping with Viktor Pinchuk (USD
6bn) at its helm. Both groupings own and control major industries in banking, mining, gas,
59
media, and transportation industries.
Martial ties fortify the public private nexus, both in the east and the west of the country
When Pinchuk married Kuchma’s daughter Olena in 2002, the Interpipe grouping
consolidated its support behind Kuchma’s party, enabling it to exploit the support of
Kuchma-appointed civil servants in its attacks on Privat. On the other hand, Privat grouping
mainly supported the Lazarenko-Tymoshenko group and eventually started attacking
Kuchma and his prime minister, later President Victor Yanukovich, for corruption and
killings of journalists leading to the Orange Revolution in 2005. During Yulia Tymoshenko’s
tenure as the prime minister, Privat grouping managed to push back the expansion of the
60
Donetsk-based groupings as well as gain more influence over Western Ukraine, including
eventually over highly strategic and controversial energy project that reversed the course
61
of the oil-pipe Odessa-Brody, which supplies Azeri oil to European countries.
Unlike SCM, the Dniepropetrovsk groupings have not shunned deals with Russia and have
sold major steel assets to Russian-multinational industrial giants, such as Evraz (seated in
55
Id. at 138–39.
56
MATUSZAK, supra note 40, at 57.
57
Id. at 16.
58
Avioutskii, supra note 34, at 119–41.
59
60
Id. at 19–20.
61
Id. at 21–22.
62 63
London), although coercion is often alleged in these deals. The multidimensionality of
affiliations and the ability of the grouping leaders to align with seemingly contradictory
positions are perhaps best illustrated by Pinchuk himself. Despite his close ties to the
Kuchma/Yanukovich reign, he also operated within the Western financial, business and
political elite and has taken “a very pro-active role in building close ties with the West and
64
the EU . . . lobbying . . . to oppose Russia.” Also, despite Kuchma’s closeness to
Yanukovich, the former now serves as the representative of the incumbent, President Petro
65
Poroshenko, in the Minsk peace process.
Needless to say, the relationships between two oblasts and among various interest
groupings have continued to change over time. While interest groups regarded President
Yanukovich as pro-Russian, he was also supported by Rinat Akhmetov, who, in contrast,
emerged as hostile towards the Russian influence over SCM’s business interests and has in
the meantime come out as critical of the attempts to undermine Ukraine’s territorial
66
integrity. It is also telling how the most pro-Russian minded oligarch, Dmitry Firtash—the
greatest rival of Yulia Tymoshenko and a force behind her demise and later imprisonment
in 2011—acted as the broker of the deal that put current President Poroshenko into office.
Firtash has also been closely tied with the PR—for example, SCM/Akhmetov—even though
67
he comes from a different region and grouping (RosUkrEnergo and group DF).
The landscape that emerges from the rivalries and affiliations among different public-
private groupings is not only extremely complex but also situationally changing. Oftentimes
68
actors such as SCM/Akhmetov play all sides, which is not surprising when the fault-lines in
the conflict are unclear, contingent, and changing themselves. Sometimes rivalries and
69
affiliations span over a number of issues but they may also shift on a case-by-case basis.
Equally, even if two or more interest groupings support the same outcome—say, closer ties
with the EU—they may go about achieving it in very different ways, because of their
62
See EVRAZ: MAKING THE WORLD STRONGER, http://www.evraz.com (last visited June 11, 2015).
63
MATUSZAK, supra note 40.
64
65
See Roman Olearchyk, Battle Rages in East Ukraine as Peace Talks Stall, FINANCIAL TIMES, Jan. 31, 2015,
http://www.ft.com/intl/cms/s/0/966d0adc-a967-11e4-a28e-00144feab7de.html#axzz3QWt0dpZw (last visited
Feb. 1, 2015).
66
See Lavoix, supra note 41.
67
Id.; see also paragraphs on DF group and RosUkrEnergo, the Russian-Ukrainian joint venture in natural gas.
68
J.Y. Donetsk & T.J. Enakievo, Rinat Akhmetov’s Choice, ECONOMIST, (May 20, 2014),
http://www.economist.com/blogs/easternapproaches/2014/05/ukraine.
69
MATUSZAK, supra note 40, at 30, 53, 78.
internal rivalries, mutual interdependencies, and the channels of influence available to

them. While, for example, the PR is allied with President Poroshenko’s party, United
Ukraine, supports ties with the EU and the NATO, albeit with firm ties to and peaceful
relations with Russia; also, there are other oligarchs who believe that closer ties to the
West can only be achieved through war with Russia. For example, Privat grouping and
Kolomoisky fund volunteer battalions and have put bounties up to one million USD “to
70
capture Russian weapons and terrorists (and) . . . . pro-separatist leader(s).” According to
estimates, while the official Ukrainian army was stripped of resources until the Western aid
started to flow in, some fifty volunteer battalions of various ideological stripes, often
71
funded by the oligarchs, made up the backbone of Ukrainian defenses.
E. Three Approaches to the Consequences of Hybridization of Wars and Subjects of

International Law
The outcome of the doctrinal analysis does not change depending on whether the target
state’s statehood is fragile or soft, whether its border controls are symbolic or non-existent,
or whether its official institutions are functioning or not. Nor does doctrinal judgment
depend on whether a country’s official economy represents only a fraction of the de facto
economic exchange, the majority of which occurs under the radar among various shady
national and external private actors. But how productive is that stance? What are the costs
of upholding the legalistic binary between war and peace, and neglecting the attendant
epistemic, interpretive, and political difficulties that plague it? Even if an external threat or
attack is illegal, stating, condemning, or even sanctioning such illegality mostly falls short of
helping to resolve a conflict, let alone stop the cycle of injustices and violence.
Especially in non-unitary states, the legalistic discourse of international law, as Andrew

Arato argued in this volume, may indeed remain irrelevant for the resolution of the
72
conflict. The factually non-unitary state structure of Ukraine, corrupted and stripped of
public assets, prevents it from acting efficiently and decisively. When we hear President
Poroshenko, an oligarch himself, a minister, or a regional governor speak on international
relations, do we hear the voice of SCM, Interpipe, Privat or other groupings, or the voice of
the Ukrainian people? Depending on their contingent political and private interests, these
73
actors control the “activation and deactivation” of the state. Through the exploitation of
the fragile and porous public/private divide, these actors defend the myriad of their
70
71
Chris Dunnet, Ukraine’s ‘Battalions’ Army, Explained, HROMADSKE INT’L, (Sept. 17, 2014),
https://medium.com/@Hromadske/ukraines-shadow-army-b04d7a683493 (last visited June. 15, 2015).
72
Andrew Arato, International Role in State-Making in Ukraine: The Promise of a Two-State Constituent Process,
16 GERMAN L.J. 691 (2015).
73
Wedel, supra note 33, at 18.
interests, primarily interested in gaining situational advantage against each other at a

particular point in time, even if the external Russian threat might have altered that
dynamic. To understand decision-making in such contexts one has to “foreground the
background of the public spectacle” of government, not only during the war but also in
74
peacetime, even in notional democracies. But what implications does such foregrounding
have for the future of international legal analysis in contexts such as the crisis in Ukraine? In
the next section I explore three possible approaches beyond the doctrinal analysis and
analyze their implications.
I. Relativist Approach
In a system of subjects that differ as much as contemporary states do, one could argue that
we need to embrace legal relativism instead of universalism. The factual differences—
between the “haves” and “have-nots,” powerful and powerless, countries in good legal
standing and “outlaw” states, politically stable and “failing” states—would seem to counsel
75
for their differential juridical treatment as well. One variant of such approach is, now
infamous, project by James Lorimer, who distinguished between absolute and relative
76
equality, giving more powerful, civilized states more rights within international order. As
an explanatory lens, Lorimer’s approach towards partial recognition of states seems to
better capture the political dynamic in and around Ukraine than any other lens available
from within the discipline of international law.
First, it draws attention to the endemic dynamic between powerful and less powerful
sovereigns in the context of the struggles over the sovereignty of Crimea, which did not
abruptly surface only in 2014, after the Maidan Revolution. Already in 1996, Yuri
Shcherbak, the ambassador of Ukraine to the United States, decried the “serious
aggravation of the situation around Sevastopol” arising from the resolutions of the Russian
77
authorities that Sevastopol had federal status within Russia. Invoking
[U]niversally recognized principles and norms of

international law, in particular Paragraph 4 of Article 2 of
the United Nations Charter, as well as resolutions of the
OSCE . . . and provisions of the Treaty between Ukraine
and Russia of November 19, 1990 . . . and [ ] U.N.
74
DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM 349 (2005).
75
Cf. ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW (2004).
76
1 JAMES LORIMER, THE INSTITUTES OF THE LAW OF NATIONS: A TREATISE OF THE JURAL RELATIONS OF SEPARATE POLITICAL
COMMUNITIES 103 (1883).
77
THE UKRAINIAN WEEKLY, Dec. 22, 1996, No. 51, Vol. LXIV
http://www.ukrweekly.com/old/archive/1996/519604.shtml (last visited Jan. 15, 2015).
Security Council . . . special statement on this matter on

July 20, 1993[,] 78
the Ambassador appealed “to the world community—to the U.N., the OSCE, the Council of
Europe, the Black Sea Cooperation Council, leaders of friendly countries, including the
U.S.A.—to take all measures in order to convince Russia that the path of territorial claims is
79
counterproductive.” According to the Ambassador the “Sevastopol campaign [began by]
influential political leaders and parties of Russia” not, however, including the President
Yeltsin. The campaigners’ view was that
to not claim Sevastopol as Russian territory . . . would

demonstrate . . . inability to defend its national interests,
and therefore to tackle the task of contemporary
Russian nation-building; If Russia should renounce
Sevastopol as a Russian city, a precedent of resolving
territorial disputes in a manner inconsistent with legal
procedures would be created. It would lead to the
development of centrifugal tendencies in Russia which
may cause dissolution of the nation . . . . Keeping
Sevastopol within Russia would significantly improve its
geopolitical situation and would provide for the
stabilization of the internal situation in Russia; From the
point of view of national and cultural traditions in Russia,
Sevastopol is one of the strategic elements of Russian
national consciousness. The loss of Sevastopol would not
only damage patriotic feelings of the Russian people but
would complicate the process of searching for a new
national identity, which is very important now in
connection with the rebirth of Russian statehood.80
As imperialistic as many Russian claims over sovereignty of Crimea may seem, these claims
have also over time also incorporated the ideals of the rule of law, the responsibility to
protect public order, human rights, and the right to self-determination, and the genuine
historical links. Such claims have Lorimerian resonances. There may be special
circumstances, according to the nineteenth century British jurist, when states either need
to be built or where they fail their populations, where recognition can be rightfully revoked,
81
triggering the right to protection.
78
Id.
79
Id.
80
Id.
81
JAMES LORIMER, THE INSTITUTES OF THE LAW OF NATIONS: A TREATISE OF THE JURAL RELATIONS OF SEPARATE POLITICAL
COMMUNITIES 27–28 (1884).
There is another sense in which the Ukraine situation rings traditional relativist bells. In the
Lorimerian relativist terms, international law is a project of progress. Recognizing the
legitimacy of territorial acquisitions, aimed to reconcile factual, social, and industrial
“aggression” with the juridical status quo, Lorimer’s relativist position would allow for an
earlier recognition of the existence of (hybrid) war between polities than is the case under
contemporary international legal regime. If international law is the project of progress, and
if that progress is linked to “fruitful [commercial] enterprises,” the idea of progress would
likewise justify industrial and economic invasions—either on behalf of either the EU or
82
Russia—together with the hybrid forms of warfare used to accomplish it.
Regardless of its explanatory power, most international lawyers would rightly denounce
such relativist approaches to the Ukrainian crisis as racist, imperialist, regressive, “real-
political,” and outdated. It is, however, intriguing to question why the structure of
international law allows for a lingering presence of Lorimer’s arguments well after their
83
heyday. Part of the answer surely lies in what Antony Anghie called “the dynamic of
difference” present behind both the naturalizing moves of international law in the context
of past colonial encounters as well as in the context of Russia’s aspirations in Ukraine
84
today. While contemporary approaches to power differentials in international law shun
the hierarchical accounts of “the dynamic of difference,” their embrace of sovereign
equality ends up reifying statehood, obfuscating incommensurability, pluralism, and multi-
polarity (fragmentation) both within and without sovereign state, thus setting the stage for
factually similar Lorimerian political outcomes.
II. Instrumental State Approach
If one were to resist the dynamic of hierarchical difference and refuse to analyze Ukraine’s
troubles through the optics of governance or state failure, one might, following Matuszak,
see the pluralism of the oligarchic competitive systems as a sociopolitical phenomenon,
hardly uncommon under the circumstances of contemporary economic globalization. As we
have seen earlier, in Ukraine, the interest groupings have public and private arms activated
and deactivated at will. They have their overt agents or covert “sleepers” in public offices
and within their businesses rivals’ groupings. In furthering their interests, they rely on non-
transparent intermediaries from both sides of the public/private divide within and without
Ukraine. Some of them command armed battalions, some have hotlines to foreign peers
82
Id. at 28.
83
For a cautious defense of transformative occupations and/or humanitarian interventions in failed states, (i.e.
relativization of the non-intervention and non-interference rules) see Adam Roberts, Transformative Military
Occupation: Applying the Laws of War and Human Rights, 100 AM. J. INT’L L. 580 (2006).
84
ANGHIE, supra note 75.
and dignitaries, while others are connected to international crime syndicates. Their conflict
and cooperation within the political, military, and economic arenas of Ukrainian hybrid
state illustrate that our imaginary of unitary statehood—featuring a straightforward chain
85
of command under the rule of law—is profoundly misconceived. In fact, as Dan Danielsen
argued, corporations will often
supply rules where none exist. Sometimes they shape

the rule scheme through direct political or economic
pressure on regulators. Sometimes they shape it by
evading the rule scheme and doing business elsewhere.
Sometimes, to satisfy other business purposes, they
adopt more stringent practices than the applicable rules
require. Sometimes they act on their own to get a
market edge or exploit an opportunity. Sometimes they
act in groups to create a harmonized regulatory
environment or to prevent regulation. . . . [Thus]
corporate actors are engaged in governance.86
The softer the state, the further the balance tips in favor of private power. From this
emerges what has been called a semi/privatized and fluid state, with globalization making
its jurisdictional borders ever more diffuse. Internal and extraterritorial hybrid orderings
may produce inconsistent and even contradictory state actions depending on who controls
the site from which they emanate, within or across jurisdictions. Public governance may
fade while the control of business interest may dominate. In the extreme, inconsistencies,
corruptible decision-making, and the lack of transparency are not remedied by appeals to
the law (e.g. who is the legal representative, what is the law of the land, whose
jurisdiction/control is effective here) since powerful interests groupings are able to act in
hybrid ways in activating the law, even being the law and the enforcement when needed.
The oligarch can speak as President, as a CEO, as a shareholder, as a rich citizen, as
Governor, as a charity leader, as the head of local assembly, or as an NGO; he can be on the
FBI’s most-wanted list and be the peace mediator building humanitarian corridors in the
87
conflict zone. He can act in public, or private, in or in both roles and his personal
advantage can be translated into state interest the more quickly and easily the softer and
more fluid the hybrid state becomes.
From this perspective, it becomes obvious that public international legal analysis that
strives to be concretely useful in a particular conflict—beyond the generation of moral
85
KENNEDY, supra note 74.
86
Dan Danielsen, How Corporations Govern: Taking Corporate Power Seriously in Transnational Regulation and
Governance, 42 HARV. INT’L L. J. 411, 412 (2005).
87
outrage and the attribution of moral blame—must be performed in tandem with the
analysis of the roles played by various private and public actors.
III. Situational Critique Approaches
One can see the emphasis on the twin hybridization—of war and of its subjects—as the
capitulation before the softening of international law, its axiomatic divisions, and
fundamental principles. In his influential work on the subject, Martti Koskenniemi has
criticized such softening tendencies as the reduction of international law to international
relations or, worse yet, the imposition of a managerialist mindset that would reduce
international law to rules of thumb, replacing it with a combination of expert rule and
88
perpetual negotiations based on equity. The worries about law’s softening, however,
need to be put in perspective given the aspirational quality, floating pragmatism, and
critical cosmopolitanism inherent in the situational critique.
First, notwithstanding its formal flaws or corrosive effect on disciplinary identity, softened
international law would not need to revoke or downgrade the statehood of a soft state, like
Ukraine—as the relativist approach suggested—since it would allow the concept of state to
be a project towards hard statehood. In fact, the fuzziness of international law’s conceptual
apparatus might assist in approaching the ideal behind the legal concept, political
89
autonomy, and self-determination. In keeping an eye on the constant evolution of states’
actual powers and its governing capacity vis-à-vis other entities, international lawyers
would keep the ideal of political autonomy and self-determination more vivid and
meaningful in comparison with the doctrinal approaches to international law.
Second, he situational critique does not simply consist in the apology for international law’s
softness or the hybridity of its central categories, however. Rather, it engages in, what we
might call, floating legal analysis. Similarly to the floating of national currencies, depending
on a situation, an international lawyer may need to allow his legal evaluation to “float.” In
the same way in which globalization made the gold standard for national currencies
impossible to sustain, floating legal analysis challenges the doctrinal “gold standard,”
defending “fixed” legal judgments only within a circumscribed spatiotemporal “band,”
90
allowing them to fluctuate as complex situations on the ground evolve.
Applied to the Ukraine crisis, working for peace requires the solving of numerous legal and
policy disputes and paying attention to the distributional consequences across the
88
Koskenniemi, supra note 35, pts. 5, 16.
89
OUTI KORHONEN, INTERNATIONAL LAW SITUATED: THE LAWYER’S STANCE TOWARDS CULTURE, HISTORY AND COMMUNITY (2000).
90
In that regard, floating analysis echoes Kennedy’s call for combining the principled commitment and the
participation in the process of governance with pragmatism about consequences. See KENNEDY, supra note 74, at
327–58.
society—without ignoring the contingent interest of the groupings on each side and/or
across the regional and interstate borders or not across the borders. For instance, the EU
and the US might be better advised to lift aggressor-sanctions on Russia if it turns out that
they predominantly affect most disempowered social groups, without meaningfully
affecting the war-hawkish power centers. By the same token, the West might also consider
arms—export bans to certain interest groupings in Ukraine even though, doctrinally, the
state of Ukraine is not the aggressor and must be collectively aided in its self-defense.
Instead of one grand solution based on doctrinally-enabled binaries between
aggressor/defender, guilt/sanction, lawbreaker/victim, states need several consecutive
decisions to tackle the conflict drivers. Several consecutive decisions are needed to tackle
the conflict drivers—each decision changing the situational conditions and, thus, altering
the bases of the next.
A situated international legal approach may thus utilize different tools from different, even
contradictory, legal regimes in order to deconstruct fixed legal positions that ignore the
instability of the factual positions to which they are applied. Although Koskenniemi
91
asserted that “no lawyer will refuse to find States as States” —in the deconstructive sense
proposed above—he seems to have embraced a kind of situational approach in his
sympathetic portrayal of the European critical cosmopolitanism (i.e. in Kant’s international
lawyer):
Kant sees the [legal] judgment as the original product of

the decision-maker, and thus attributable to that person.
Against managerialism as ideology, law is enlightenment
as responsibility. This would not be fidelity to any
particular meaning of a text or practice. Nor to a
systemic effort to reach some objective, purpose, or
value. Instead, it would have to be law as a mindset
within which the law-applier will have to be about the
way the law-applier approaches the task of judging
within the narrow space between fixed textual
understandings . . . on the one hand, and predetermined
functional objectives . . . on the other, without endorsing
the proposition that the decisions emerge from a “legal
nothing” . . . . 92
Equally, Koskenniemi rightly maintains that
91
Koskenniemi, supra note 35, pt. 18.
92
Id., pt. 26.
[t]here is no innocent standpoint, no meeting of

horizons at some moment of brilliant hermeneutic
reflection. Some will continue to win, others to lose.
Losing consciousness of this is perhaps the worst
possible contribution a lawyer can make . . . . [T]o
expand toward universality, one must penetrate deeper
into subjectivity.93
It seems logical that in addition to the self-critique—the penetration into the judgment-
maker’s subjectivity—one would also need to apply the spirit of that critique on to other
subjects (legal actors, states, private parties) that are the object of a particular judgment in
a particular situation if for no other reason than not to objectify, or “other,” them into a
94
subordinate position with an epistemic hierarchy. By recognizing inherent critical
cosmopolitanism as the larger frame of inextricably partial perspectives of international
lawyers, and by extending the standards of this interpretive charity on to the hybrid
subjects involved in hybrid conflicts, the situational critique aspires to, what Kennedy aptly
95
called, “grace in governance.”
F. Conclusion
Even without a sociological, anthropological, historical, or comparative legal analysis, the

blunt standardized indicators of democracy, transparency, or investor security have long
shown that the situation in Ukraine was similar to North Korea and getting worse since the
96
financial crisis and Yanukovich’s presidency. Security and stability were weak, with various
internal interests groupings competing against each other over Ukraine’s economic
resources while at the same time defending against the economic–industrial competition
between Russia and the EU. They frustrated and circumvented the promises made by the
state of Ukraine for opening its markets in return for oil, gas, or both (Russia) and export
opportunities (EU). Interested in monopolizing entire economic sectors and supply chains,
the one common fear of the interest groupings was to fend off transparency and free
competition, both from within and from without Ukraine. The hyper-competition in which
they were engaged entailed constant hostile takeover risk, political coercion through supply
cuts or market access, raiding practices, and violent crime. For them, every change—be it
new presidential election and renegotiation of his constitutional powers or an international
treaty (for example, economic association or customs union)—risked huge financial losses,
93
Id., pt. 29.
94
Such logic can, of course, be criticized as the re-introduction of the hermeneutic Horizontenverschmelzung
ideal.
95
KENNEDY, supra note 74, at xxvi.
96
the confiscation or nationalization of assets, criminal prosecution domestically or abroad,

cancellations of exclusive licenses to operate in one or more economic fields, collection of
97
fantastic back taxes, or a sudden influx of more competitive foreign products. The lack of
property protection and investor security, the ability to buy verdicts, the corruption of state
institutions—including the security and the regular police—meant the same insecurity for
internal interest groupings as for outside business and investment. In addition to the global
financial crisis and the percolating effects of the Orange revolution—the so-called “revolt of
98
the millionaires against the billionaires” —with the middle class and mid-size enterprises
practically missing from the scene, the Yanukovych’s presidency was characterized by his
99
desire to grow his own business clan known as “The Family.” Within this scheme,
prominent members of the security apparatus were engaged in smuggling, and oligarchs
regarded the affairs of the state as a zero-sum game. In the end, Yanukovych’s balancing
efforts were failing. He upset many interest groupings and his imprisonment of
Tymoshenko dealt a strong blow to his relationship with the West; all the while, he was
attempting to reduce his personal dependence on the most important political party in
Ukraine (PR) that had backed his ascent.
With the internal stress level rising, it was imprudent to increase conflicted external
100
pressures on the state. In terms of Gerasimov’s description of hybrid war, both internal
and external versions of it were already underway when the EU seemed to gain against
Russia in 2013. As industrial and economic hyper-competition is part of hybrid war tactics,
the signing of the EU Association Agreement could be construed as an act of hybrid war on
behalf of some circles in Russia as well as those Ukrainian interest groupings that stood to
lose the most from a more open competition with the businesses from the EU. It was clear
that the Russian interest groupings that had so far been much more prominent in the
Ukrainian market than their EU peers—in the sectors that fluctuated between partial
opening and protectionism—would see it as a hostile act both by Ukraine and by the EU.
Consequently, it was highly probable that Russia may retaliate. The precarious balance
within and without Ukrainian state borders had been upset and a major destabilization
followed. Its logic was evident. It is highly probable that it was only the tip of the iceberg
because the majority of the interests in Ukraine, yet also in Russia and the post-Soviet
space more widely, hides in the shadows of the grey economy and non-transparent power
101
structures.
97
Id. at 15, 23–24, 43.
98
Id. at 19.
99
Interestingly, the Family is the relatively belated start to build a new oligarchic clan with a model that is actually
based on blood relations in addition to the reliance of security police links.
100
See Introduction to RICHARD SAKWA, FRONTLINE UKRAINE: CRISIS IN THE BORDERLANDS (2015).
101
Wedel, supra note 33.
The question for international law, or more accurately, for international lawyers, is how to
support peace efforts in such a situation. The dominant mode of legal analysis set the stage
for—if not explicitly requested—economic and military muscling, both local and
international stolen public assets investigations (locally and internationally), the ballooning
of budget deficit, further energy instability for Ukraine, Europe, and beyond, and hurting
economic sanctions between the EU, United States, and Russia, and between Russia and
Ukraine. The framing of the conflict through doctrinal binaries that suppress the factual
hybridity of the conflict hurts diplomatic efforts, disrupts the necessary co-operation
between the West and Russia vis-à-vis Syria, ISIS, Iran, Afghanistan and Libya, and leads to
further destabilization. As in other contentious crises over the last several decades,
international norms affirming territorial integrity, political independence, sovereign
equality, self-determination of peoples, and the prohibition of the threat or use of force can
work a shield against political reality. This reality contributes to the illusions of a stabilizing
statehood and adequate governance where in fact there is none, preventing us from timely
identifying quickly deteriorating political situations.
As argued in this article, a promising way out of this predicament for international lawyers
is to assert the politics of law—both against doctrinal approaches as well as Lorimerian
geopolitics—in the “spirit,” or with the “grace” of, situational critique. As Donna Haraway
rightly put it, “[C]oming to terms with the agency of the objects studied, is the only way to
102
avoid gross error and false knowledges of many kinds. . . . ” To be persuasive to those
who struggle on the ground and to productively address underlying conflict drivers, one
therefore needs to unpack the actions and subjects that international law has traditionally
pre-packed for the purposes of doctrinal legal analysis. For the international lawyer, this
also means conceiving new options and making choices as situations develop, rather than
participating in the freezing of narratives, the reification of political and economic subjects,
and, ultimately, the conflicts that arise amongst them. In critiquing the prevailing mode of
international legal analysis in the context of the crisis in Ukraine, this Article embraced the
“ongoing urgency of the question: ‘what is the social significance of your science?’ ”
together with the corresponding “impossibility of answering that question once and for
103
all.” While accepting this impossibility, the situational critique defended in this Article
also entails the acceptance of responsibility to offer renewed answers to this question in
actual crises that summon the attention of international law and provoke it to respond
constructively.
102
Haraway, supra note 2, at 593.
103
Anne Orford, Scientific Reason and the Discipline of International Law, 25 EUR. J. INT’L L. 369, 385 (2014).
The Ukraine Crisis, Cold War II, and International Law
By Boris N. Mamlyuk
A. Introduction
The Ukraine crisis has, yet again, called into question the coherence and stability of
international law both as a language for mediating particular types of international
1
disputes—such as conflicts between the so-called Great Powers —and as a set of
institutions capable of serving as fora for the resolution of these disputes. Given the scale
and intensity of the ongoing war in Ukraine and the magnitude of its regional and global
repercussions, a number of policymakers and historians have already made compelling
arguments for why the conflict may be the most significant threat to global order since the
2
end of the Cold War—perhaps even since the Cuban Missile Crisis. While policymakers in
3
the U.S. and Russia have cautioned against drawing Cold War parallels, numerous analysts
*Assistant Professor of Law, University of Memphis, School of Law; Ph.D., University of Torino, Faculty of Law;
2008–2009 Fulbright Fellow, Institute of State and Law, Russian Academy of Sciences; J.D. (2005), University of
California (Hastings).
1
GERRY SIMPSON, GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER (2004).
2
Juliane von Mittelstaedt & Erich Follath, Interview with Henry Kissinger: ‘Do We Achieve World Order Through
Chaos or Insight?,’ DER SPIEGEL INTERNATIONAL (Nov. 13, 2014),
http://www.spiegel.de/international/world/interview-with-henry-kissinger-on-state-of-global-politics-a-
1002073.html; STEPHEN F. COHEN, SOVIET FATES AND LOST ALTERNATIVES: FROM STALINISM TO THE NEW COLD WAR (2012);
Jessica McKenzie, The Most Dangerous Time in Russian-US Relations Since the Cuban Missile Crisis, THE NATION
(Dec. 5, 2014), http://www.thenation.com/blog/192073/most-dangerous-time-russian-us-relations-cuban-
missile-crisis.
3
See NATO, NATO-RUSSIA RELATIONS: THE FACTS, (Feb. 5, 2015),
http://www.nato.int/cps/en/natolive/topics_111767.htm#cl1 (debunking “myth” of NATO trapped in a “Cold War
mentality”); see also INTERNATIONAL SECURITY ADVISORY BOARD, REPORT ON U.S.-RUSSIA RELATIONS (Dec. 9, 2014), stating:
The term ‘new Cold War’ is neither accurate nor helpful. The
immediate issues are regional, not global, and—except among some
extreme nationalists in Europe—the ideological content of the Putin
vision has not inspired adherents outside Russia. But if there is no
new Cold War, at a minimum there is now a significant adversarial
component to our relationship from the Russian standpoint.
http://www.state.gov/t/avc/isab/234902.html; see also U.S. State Department Daily Press Briefing, (Mar. 13,
2015), http://translations.state.gov/st/english/texttrans/2015/03/20150316314034.html#axzz3UsXW78hL; see
also Интервью Владимира Путина радио «Европа-1» и телеканалу TF1, KREMLIN.RU (June 4, 2014),
http://www.kremlin.ru/transcripts/45832.
in both countries have proclaimed the start of a new Cold War in light of the rapid
4
deterioration in relations between Moscow and Washington. Beyond bilateral U.S.–Russia
relations, and in the words of Dmitri Trenin, director of the Carnegie Moscow Center, Cold
War Two (hereinafter “CWII”) has “effectively put an end to the interregnum of [post-Cold
5
War] partnership and cooperation between the West and Russia.” While sharing the view
that a new Cold War has erupted, this article suggest that its causes are far deeper and its
likely battlegrounds are far wider than mere antagonism between the United States and
Russia over the fate of Ukraine. To the extent that CWII has begun, it may mark a return to
interbloc rivalry, East versus West, or even Great Game geopolitics. To complement these
frames, the present conflict may also be understood by viewing it through the prism of
political economy, particularly the study of “new-statism,” or the new developmental state
6
within the broader context of the development of global capitalism. Thinking of CWII this
way allows one to ask whether CWII is actually a war between Western liberal capitalism
and various systems of state capitalism, of which Russia’s is but one. To be even more
precise, one can also ask whether the conflict is better thought of as a contest between
different state capitalisms for control over key trade or transit routes, production locales,
and markets. Tribes, states, and empires have always waged mortal combat over these
material matters. CWII—whether it has started or soon will—will likely rest on similar
considerations. And yet, despite the seriousness of the threat, there has been remarkably
little academic discussion, and much less public debate, regarding the configuration of
global power flows that has contributed to this crisis or the role, and limitations of law in
7
structuring our political imaginations in response to these challenges. This Article is an
attempt to call attention to several serious aspects of the Ukraine crisis which have
hitherto been underanalyzed, namely the role of information warfare in exacerbating its
magnitude.
4
Michael McFaul, Confronting Putin’s Russia, N.Y. TIMES (Mar. 23, 2014,); Moscow State University, Холодная
война XXI века, Конференция 23 апреля 2014 года в Московском Государственном Университете, YOUTUBE
(Apr. 23, 2014), https://www.youtube.com/watch?v=v6Vs74j4kpQ (recording of high-level university-wide
conference at Russia’s leading university on the topic of Cold War II).
5
Dmitri Trenin, Welcome to Cold War II, FOREIGN POLICY, (Mar. 4, 2014),
http://www.foreignpolicy.com/articles/2014/03/04/welcome_to_cold_war_ii (emphasis added).
6
See, e.g., DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM (2005); Nicola Phillips, Globalization and Development, in
GLOBAL POLITICAL ECONOMY 416 (John Ravenhill ed., 2d ed., 2008); see also MARK RUPERT & M. SCOTT SOLOMON,
GLOBALIZATION AND INTERNATIONAL POLITICAL ECONOMY: THE POLITICS OF ALTERNATIVE FUTURES (2006).
7
Is International Law Effective? The Case of Russia and the Ukraine, American Society of International Law Annual
Meeting (Apr. 9, 2014), http://publicinternationallawandpolicygroup.org/wp-content/uploads/2014/04/Event-
Review_Is-International-Law-Effective.pdf (abbreviated summary of proceedings); Katrina vanden Heuvel &
Stephen F. Cohen, Cold War Against Russia Without Debate, THE NATION (May 1, 2014),
http://www.thenation.com/article/179579/cold-war-against-russia-without-debate; US-Russia Forum, YOUTUBE
(June 16, 2014), https://www.youtube.com/watch?v=p8iH50BR0EQ.
2015 The Ukraine Crisis, Cold War II, and International Law 481
B. The Ukraine Crisis and International Law
The “Ukraine crisis” as used here refers to the ongoing geopolitical contest over the fate of
8
Ukraine, the breadbasket of Europe and the point of origin of Russian civilization. The
term explicitly captures events giving rise to the Euromaidan protests in late November
2013, and includes: The subsequent overthrow of democratically-elected Ukrainian
president Viktor Yanukovich on 22 February 2014; the emergence of a nationalist post-
9
overthrow government; the eruption of federalist/separatist “anti-Maidan” protests in
10
Crimea and throughout Ukraine—primarily, but not exclusively— in the Donbas region;
11
the subsequent referendums on independence held in Crimea and Luhansk/Donetsk
12
regions; the absorption of Crimea into the Russian Federation; the eruption of armed
13
conflict in Eastern Ukraine; and countermeasures taken by the U.S., EU, and NATO
against Russia for its actions in Crimea and its support of alleged separatists in Eastern
14
Ukraine.
8
See Umut Özsu, Ukraine, International Law, and the Political Economy of Self-Determination, 16 GERMAN L.J. 434,
438–39 (2015) (defining the “Ukraine crisis” as the “culmination of a broad trend over the past two decades to
move away from the U.N. Charter’s prioritization of territorial sovereignty and toward what many regard as a new
species of liberal interventionism).
9
Lucan Way, Civil Society and Democratization, 25 J. DEMOCRACY 35 (2014); Anton Shekhovtsov & Andreas
Umland, Ukraine’s Radical Right, 25 J. DEMOCRACY 59 (2014),
http://www.journalofdemocracy.org/sites/default/files/Ukraine-25-3.pdf.
10
Kristian Vigenin, We Insist on a Thorough Investigation of the Events in Odessa, BULGARIAN MINISTRY OF FOREIGN
AFFAIRS (May 3, 2014), http://www.mfa.bg/bg/events/6/1/2845/index.html (demanding an investigation into May
2, 2014 Odessa Trade Unions House fire, which killed more than 40 anti-Maidan protesters who were trapped
inside while the building was set alight) (in Bulgarian).
11
NATO says Crimea Referendum Would Break International Law, REUTERS (Mar. 14, 2014),
http://www.reuters.com/article/2014/03/14/us-ukraine-crisis-nato-idUSBREA2D1NI20140314.
12
Address by President of the Russian Federation, PRESIDENT OF RUSSIA (Mar. 18, 2014),
http://eng.kremlin.ru/news/6889 (calling on the Duma to accept Crimea and Sevastopol as two new subjects of
the Russian Federation).
13
Paul Stronski, Broken Ukraine: The Mess Isn't All Russia's Fault, FOREIGN AFFAIRS (Mar. 17, 2015),
https://www.foreignaffairs.com/articles/eastern-europe-caucasus/2015-03-17/broken-ukraine.
14
Andrew Monaghan, The Ukraine Crisis and NATO-Russia Relations, NATO REVIEW MAGAZINE (2014),
http://www.nato.int/docu/review/2014/Russia-Ukraine-Nato-crisis/Ukraine-crisis-NATO-Russia-
relations/EN/index.htm (stating that
Various security aspects of the crisis–such as the infiltration of

Crimea, and Russian military exercises and a build up on Ukraine’s
border–have unsettled Eastern European members of the Alliance
and created a debate in the West about the strength of NATO’s
Article Five commitment to defend its members. This has resulted
both in enhanced reassurance efforts and the preparation of a
Readiness Action Plan. This plan envisages enhancing intelligence and
I. Roots of the Ukraine Crisis
Like any geopolitical phenomenon, the Ukraine crisis has multiple roots. First, at the most
superficial level the timing of the crisis suggests that Russia’s decision to grant asylum to
Edward Snowden—the engineer of the single most disruptive and consequential
intelligence leak in history—was certainly one major cause in the rift between the U.S./U.K.
15
and Russia. Russia’s involvement in the Snowden affair was one immediate catalyst in the
16
breakdown of U.S.-Russia and NATO-Russia relations in the latter half of 2013, which
were otherwise faithful to the underlying “reset” ethic promulgated by the Obama
17
Administration and the administration of then-president Dmitry Medvedev. In a similar
correlative vein, roots of the Ukraine crisis may lie within Russian support for the Assad
regime in Syria, thereby stifling eleventh-hour efforts by the U.S. to intervene in early
18
September 2013, or within ongoing Russian support for a comprehensive nuclear deal
19
with Iran, which some influential U.S. foreign policy leaders actively oppose.
Second, the breakdown in Russian–Ukrainian relations can be traced to centuries-long

cultural, intellectual, and political rivalry—or at least anxiety—between Kiev and Moscow
awareness capabilities, more high intensity military exercises,

prepositioning equipment and supplies further east and improving
the capacity of the NATO Rapid Reaction Force).
15
GLENN GREENWALD, NO PLACE TO HIDE (2014); Tom Whitehead, GCHQ’s Internet Surveillance with US Ruled
Unlawful, THE TELEGRAPH (Feb. 5, 2015), http://www.telegraph.co.uk/news/uknews/law-and-
order/11394860/GCHQs-mass-Internet-surveillance-ruled-unlawful.html.
16
See McKenzie, supra note 2.
17
Office of the Press Secretary, U.S.-Russia Relations: “Reset” Fact Sheet, (June 24, 2010), available at
https://www.whitehouse.gov/the-press-office/us-russia-relations-reset-fact-sheet. For a provocative perspective
on Russia’s ability and willingness to abide by the “Western” language of international law, see, e.g., Anna
Dolidze, The Non-Native Speakers of International Law: the Case of Russia, 15 BALTIC Y.B. INT’L L. (forthcoming
2015).
18
Barack Obama, Remarks in Address to the Nation on Syria, WHITEHOUSE.GOV (Sept. 10, 2013), (transcript available
at https://www.whitehouse.gov/the-press-office/2013/09/10/remarks-president-address-nation-syria):
The U.S. has] determined that it is in the national security interests of

the United States to respond to the Assad regime’s use of chemical
weapons through a targeted military strike. The purpose of this strike
would be to deter Assad from using chemical weapons, to degrade
his regime’s ability to use them, and to make clear to the world that
we will not tolerate their use.
19
See Robert Mackey, Republicans’ Iran Letter Ignites Fierce ‘#47Traitors’ Debate Online, NY TIMES (Mar. 11,
2015), www.nytimes.com/2015/03/12/world/middleeast/republicans-iran-letter-ignites-fierce-47traitors-debate-
online.html?_r=0.
20
for ascendancy vis-à-vis one another and, more broadly, across the Slavic world. In the
words of one of contemporary Ukraine’s leading sociologists, Evgenii Golovakha,
Ukrainian–Russian relations have always been characterized by an “older brother, younger
brother” rivalry, with Russians as “younger brothers” trapped in an expansive mindset that
21 22
is built on a self-consciously messianic—Moscow as the Third Rome —civilizing mission.
By contrast, Kievan Rus and the hundreds of medieval principalities that interlaced the
territory that is now contemporary Ukraine, had always been more multicultural and more
23
welcoming of foreign influences. This nearly millennial tension and genuine fraternal
bond between Ukraine and Russia—as well as their people—informed every geopolitical
24
realignment involving one or the other state or territory. Ukraine had always occupied a
preferred place in the Russian political imagination, from Russian Imperial history through
the Soviet and post-Soviet periods, as the point of origin of Russian language, Russian
25
Orthodoxy, and Russian statehood. Beyond adding necessary historical or cultural
context, the symbiotic and mutually constitutive Ukrainian–Russian relationship features
prominently as a cause in the internally conflicting rationales for the Ukraine crisis, both
26
within Ukraine and Russia. To paraphrase Churchill, if Russia is a “riddle wrapped in a
20
Evgenii Golovakha, Russia Has Lost the War, YOUTUBE (Mar. 16, 2015),
https://www.youtube.com/watch?v=Ljb2ZKsoaXo.
21
Id.; Alar Laats, The Concept of the Third Rome and Its Political Implications, in RELIGION AND POLITICS IN
MULTICULTURAL EUROPE: PERSPECTIVES AND CHALLENGES 102 (Alar Kilp & Andres Saumets eds., 2009) (tracing the
doctrinal origins of Moscow as the Third Rome and arguing that the universalizing concept still sub-consciously
animates Russian political discourse).
22
See Golovakha, supra note 20. For several leading accounts of the way in which international law furthers a
Eurocentric civilizing mission, see ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY, AND THE MAKING OF INTERNATIONAL LAW
(2005); see also MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870–
1960 (2002).
23
Ukraine’s culture of hospitality is legendary. In the political sphere, this includes, but of course is not limited to,
the appointment of Scandinavian rulers—the Varangians—to rule Kievan Rus, just as Ukrainians have welcomed
foreign-born cabinet ministers in the post-Yanukovich era. PAUL R. MAGOCSI, A HISTORY OF UKRAINE: THE LAND AND ITS
PEOPLES 65–70 (2010); Ukraine’s New US-Born Finance Chief Enduring Baptism by Fire, N.Y. TIMES (Mar. 1, 2015);
Ukraine Goes Abroad for Government Ministers, THE WALL ST. J. (Dec. 2, 2014).
24
The very etymology of the name “Ukraine,” it should be remembered, hearkens back to the Old Slavic (and
contemporary Russian and Ukrainian) word krai, which means “border”—which, when combined with the
prepositional u-, translates to “borderland.” ETYMOLOGICAL DICTIONARY OF THE UKRAINIAN LANGUAGE, VOL. 7 (O.S.
Melnichyuk, ed., 1983). The space that Ukraine bordered, of course, and in relation to which it has always been
defined, was none other than Moscovite Rus, that is, the place we know as contemporary Russia.
25
VLADIMIR VASILEVICH SHCHERBITSKII, SOVIET UKRAINE (1985); ROMAN SOLCHANYK, UKRAINE AND RUSSIA: THE POST-SOVIET
TRANSITION (2001); Dmitri Titoff, Is Russia’s Perceived Insecurity a Sufficient Explanation for War?, SILK ROAD
REPORTERS (Mar. 15, 2015), http://www.silkroadreporters.com/2015/03/15/is-russias-perceived-insecurity-a-
sufficient-explanation-for-war/.
26
See, e.g., William E. Butler, Russia and the WTO System: Law, Regionalism, and Politics, 44 U. MEM. L. REV. 599,
616 (2013) (“Whether the vision of a CIS common law comes to pass or not, the symbiotic role of the Russian
legal system cannot fail to impress. Russian law and Russian legal concepts serve as the principal model for legal
mystery inside an enigma,” then Ukrussia (a deliberately awkward politically-ambivalent

term to describe the geographic, social, and political space between Poland and Alaska)—
with its high rates of intermarriage, shared political history, and absence of distinct
27
markers —is Churchill’s riddle metaphor squared, due to the obviously conflicting
inferiority/superiority tropes in Ukrainian political discourse vis-à-vis Russia, Russia’s
superiority/fraternality complex vis-à-vis Ukraine, and contemporaneous, almost
instinctive, affection and distrust from both sides towards the other (not to mention
Ukrussia’s perennial anxiety with the “West”). Many Russians and significant segments of
Ukrainian society believe that Russia and Ukraine quite literally represent one and the
28
same people, one nation, and thus one supra-state civilizational space. This belief is a
core empirical basis for many of Russia’s international legal arguments in regards to the
Ukraine crisis.
A third potential cause of the present crisis—and one that features prominently in elite
Russian foreign policy and international legal arguments—is that the Ukraine crisis is
29
chiefly the product of a U.S.-backed coup. Because any inquiry into the factual basis for
this assertion would necessarily require access to sources that ordinarily are not accessible,
international lawyers can and should inquire hypothetically into the legal effect, if any, of
the forced removal of Yanukovich upon Russia’s subsequent actions in Ukraine. Brad Roth’s
contribution to this publication takes this issue up directly, but only in the context of the
legitimacy of the ouster of Yanukovich (intervention by invitation) and broader arguments
development within the CIS.”); see also Laure Delcour & Kataryna, Wolczuk, Eurasian Economic Integration:
Implications for the EU Eastern Policy, in EURASIAN ECONOMIC INTEGRATION: LAW, POLICY AND POLITICS 179, 197 (Rilka
Dragneva & Kataryna Wolczuk eds., 2013) (describing Russian efforts to incentivize Ukrainian participation in the
Eurasian Customs Union, including long history of gas disputes between Ukraine and Russia),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2430216.
27
See BOHDAN HARASYMIW, POST-COMMUNIST UKRAINE 206 (2002) (discussing lack of differentiating markers between
“Ukrainians” and “Russians”). The term “Ukrussia” is one of my choosing precisely to collapse this national
distinction as a heuristic to facilitate describing particular aspects of the Ukraine crisis which do not depend on
nationality.
28
Here, “nation” is used in the narrow Slavic sense of the word “natsia,” as ethnos. This is the same ethnic sense
of the word in which the modern Wilsonian right of “nations” to self-determination was formulated. Vladimir
Putin, Concert Dedicated to the Reunification of Crimea and Sevastopol with Russia, PRESIDENT OF RUSSIA (Mar. 18,
2015), available at http://www.kremlin.ru/news/47878 (“In Russia, we have always thought that Russians and
Ukrainians are one people. I think so now as well. Of course, extreme nationalism is always harmful and
dangerous.”).
29
Vitaly Churkin, Russian Ambassador to the United Nations, Address to the United Nations Security Council
7253rd Meeting (Aug. 28, 2014), http://webtv.un.org/watch/ukraine-security-council-7253rd-
meeting/3754452835001; S. E. Naryshkin, The Coup D’etat in Kiev in February 2014 and International Law, 2
EURASIAN L. J. 8 (2015), http://www.eurasialaw.ru/index.php?option=com_content&view=article&id=7140:-2014-
&catid=477:-2-81-2015&Itemid=796 (interview with Naryshkin Sergey Yevgenyevich, Chairman of the State Duma
of the Federal Assembly of the Russian Federation) (In Russian).
30
surrounding self-determination for Crimea and LNR/DNR. And as Roth’s example
suggests, one need not be an “apologist for Russia” to seriously consider these questions,
31
no matter how contested the underlying facts may be. That Russia has chosen to
explicitly portray the Ukraine crisis as a U.S.-instigated coup logically implies that all of the
international legal arguments raised in this volume regarding the impermissibility of
Russia’s actions in Ukraine are reversed by Russia to reflect impermissible U.S. intervention
in Ukraine, including the dispatch of military advisors by the U.S. and U.K. to support
32
Ukrainian military restructuring.
Fourth, as Umut Özsu and Outi Korhonen argue, the Ukraine crisis cannot be understood
without analyzing purely domestic socioeconomic conditions and the debate over regional
trade integration within the context of both the Eastern Partnership Programme of Europe
33
and the Eurasian Customs Union. Although the crisis is now typically attributed by expert
circles to the latter dynamic as a rejection of Russian regional hegemonic influence, the
former (domestic economic conditions) actually accounted for a greater share of the mass
34
mobilization of discontented Maidan protesters. Although bound up with romantic
rhetoric regarding European aspirations and rule of law, the narrow issue that triggered
mass mobilization on the Maidan in late November 2013 was pronounced dissatisfaction
with the economic policies of the Yanukovich regime and ultimately concerned bread-and-
35
butter economic welfare issues for the overwhelming majority of Ukrainian citizens. Of
course, the demands of Euromaidan protesters were not articulated in strictly socio-
economic terms. To the extent that utterances from the main stage on Kiev’s Maidan
Square could be said to represent the will of the polity, they coalesced around the
following particularized excesses: (1) nepotism and cronyism within the governing regime
(anti-corruption); (2) suppression of fundamental human rights, particularly civil and
political rights (e.g., violation of the right to assemble, and passage of strict controls on
30
Brad Roth, The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention, 16 GERMAN L.J.
384, 388 (2015).
31
Id. at 415; Jens David Ohlin, infra note 74 (discussing competing empirical theories for the shooting down of
Malaysian Airlines flight MH17 and discussing international legal consequences of alleged Russian support for
separatists).
32
See Naryshkin, supra note 29 (“I will leave the terminological games on their [Western] consciences, but will
emphasize that facilitating an armed coup from abroad—in legal terms is called intervention into domestic affairs
of Ukraine.”). On 20 March 2015, the United States announced that approximately 300 U.S. paratroopers will
begin training Ukrainian National Guard units in Western Ukraine. Earlier in March 2015, the U.K. also announced
that it would send additional non-lethal support in the form of advisory and training teams.
33
See Özsu, supra note 8.
34
Russian Bailout Masks Ukraine’s Economic Mess, BBC NEWS (Dec. 18, 2013),
http://www.bbc.com/news/business-25430980.
35
Id.; see also NATO Says Crimea Referendum Would Break International Law, supra note 11.
political speech); (3) particular grievances regarding treatment of political prisoners, and
other specific violations of rights (excesses of the state security police service, the Berkut);
and (4) Russia’s perceived encroachment into Ukraine’s sovereign will for the purpose of
enticing Ukraine towards further integration with Russia.
Each of these grievances—and the list could be expanded in manifold ways—reflected

broader anxiety amongst the people of Ukraine that the post-socialist transition had failed
them in fundamental ways by depriving them of welfare, security, and the promise of a
36
prosperous future.
That Ukrainian protesters—and the post-Yanukovich Ukrainian government—chose to

highlight the economic failures of the post-Soviet transition by articulating their demands
in the vocabulary of nationalist politics—in opposition to perceived Russian threats, or in
37
opposition to the divisive or ineffective politics of fifth-column moskali within Ukraine —
in the vocabulary of human rights, or in the jargon of law and development—good
governance, legislative/institutional reform, anti-corruption, rule of law promotion, judicial
independence, etc.—is not incidental. These argumentative tropes operate on a distinct
conception of international law and global governance that gives preference to particular
international legal actors over domestic legal actors, and, furthermore, over more inchoate
38
socio-political forms—such as class. Thus, nationalism gives preference to the nation-
36
John D. Haskell & Boris N. Mamlyuk, Capitalism, Communism . . . and Colonialism? Revisiting “Transitology” as
the Ideology of Informal Empire, 9 GLOBAL JURIST (2009), http://ssrn.com/abstract=1679246.
37
In Ukrainian, moskali is a derogatory plural term to refer to ethnic Russians, Russian nationals, or Russian-allied
Ukrainians, and is typically used to refer to chauvinistic or strong-arm conduct by Russians against Ukrainian
interests, irrespective of context (art/culture, military, economic, etc.). Of many Russian equivalents to refer to
Ukrainians, a term with similar derogatory meaning to moskali is ukrop, or baby dill spice. These linguistic nuances
are significant because some of the rhetoric emanating from Maidan and its partisans has had eerie parallels to
infamous utterances in the Rwanda genocide (Hutus referring to Tutsis as cockroaches and calling for their
extermination). See The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, (Sept. 2, 1998); The Prosecutor v. Ferdinand
Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-A, (Nov. 28 2007). Further, in the 2 May 2014
Odessa Trade Unions House fire reports showed that far-Right groups were chanting “burn kolorados” which is a
double entendre reference to: (1) the orange and black colors of the Ribbon of St. George, a ribbon print that is
used to widely commemorate Soviet victory in WWII and which serves as an identifying marker for pan-Soviet-
space solidarity; (2) the typical summer Eastern European farm practice of manually gathering Colorado potato
beetles (Leptinotarsa decemlineata) off potato plants to burn them in large farm fires. Furthermore, in the
context of the Ukraine crisis, the ‘fifth-column’ internal threat may refer to, inter alia, the assertion that Ukrainian
intelligence and state police services were penetrated and compromised by Russian intelligence, which was
alleged to exert control over Ukrainian foreign affairs. See Denis Trifonov, Russian Intelligence Presence in the CIS,
THE CENTRAL ASIA-CAUCASUS ANALYST (Dec. 17, 2003), http://www.cacianalyst.org/publications/analytical-
articles/item/8615-analytical-articles-caci-analyst-2003-12-17-art-8615.html. Therefore, to fully defend
sovereignty and actualize self-determination against Russia, one of the first acts of the post-Yanukovich
government was “lustration” across all organs of public administration to remove perceived channels of Russian
influence. Council of Europe Venice Commission: some provisions of Ukrainian lustration law should be revised,
INTERFAX-UKRAINE (Dec. 12, 2014), http://en.interfax.com.ua/news/general/239646.html.
38
See Özsu, supra note 8.
state as a legal actor on the international plane; human rights gives preference to the
individual vis-à-vis an offending state and gives the individual international legal
personality; developmentalist discourse gives preference to particular institutional actors,
such as the IFIs, with technocratic expertise to solve seemingly complex and intractable
39
problems. In this way, long before the Crimean conflict and violence in the Donbas, the
articulation of Maidan claims in distinct international legal forms—such as Ukraine’s right
40
of self-determination in making its “European choice” free from Russian pressure and the
political violence against Maidan protesters as gross violations of human rights that
delegitimize the otherwise democratically-elected and universally-recognized Yanukovich
41
government —seemingly creates the conditions and the necessity for an international
legal intervention to rectify the underlying problems. In other words, the articulation of
various economic and political claims in narrow international legal terms suddenly
removes an otherwise purely domestic matter into the realm of international law,
provided various international legal actors are prepared to entertain those claims or honor
those interests.
39
Alvaro Santos, The World Bank’s Use of the “Rule of Law” Promise, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A
CRITICAL APPRAISAL 275, 284 (David M. Trubek & Alvaro Santos eds., 2006) available at
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1915&context=facpub; Ukraine’s Bail Out,
THE ECONOMIST (Mar. 14, 2015), http://www.economist.com/news/europe/21646214-loan-provides-sticking-
plaster-stricken-war-weary-economy-when-relief-looks-barely-enough.
40
See Özsu, supra note 8, at 444 (explaining that in the context of the Ukraine crisis, self-determination “is to be
understood primarily as the ability of the ‘Ukrainian people’ to ‘choose’ European integration over Russian
hegemony, and only secondarily as the ability of the ‘peoples’ of Donetsk and Luhansk to conduct elections with
an eye to autonomy or independence.”).
41
See Roth, supra note 30.
42
Illustration 1. Logo of the Ukrainian Lustration Committee
43
These arguments are not unique to Ukraine. Similar argumentative rationales have been
deployed against authoritarian or undemocratic regimes to support subsequent arguments
for intervention—as witnessed in Libya, Syria, Egypt, Iran, and Venezuela—or are deployed
44
towards particular emancipatory ends. Often, the universalizing/particularizing—
45
globalizing/Balkanizing—arguments appear side by side, reinforcing one another. Matters
that are traditionally within the sole purview of domestic law acquire international
42
As of 22 March 2015, 399 former government officials have been added to the Ukrainian Ministry of Justice
lustration list. See UKRAINIAN MINISTRY OF JUSTICE, LUSTRATION COMMITTEE, Unified Governmental Registry of Those
Falling Within Ukrainian Law “On Cleansing [Lustration] of Government,” available at
http://lustration.minjust.gov.ua/register (In Russian). Ukraine’s law on lustration has been deemed overbroad
and lacking in procedural due process by the Venice Commission, and is currently undergoing review. See UKRAINE
MINISTRY OF JUSTICE, LUSTRATION COMMITTEE, Візит Венеціанської Комісії до України:Обговорення Проекту Змін
До Закону України “Про Очищення Влади,” (Feb. 17, 2015), available at
http://lustration.minjust.gov.ua/article/read/53 [In Russian].
43
Before actions in Crimea and Donbas, similar international legal arguments were deployed against Russia in
connection with the highly-publicized Khodorkovsky affair (Russia violating liberal internationalist principles
regarding the inviolability of private property) or in connection with its notorious anti-gay-propaganda law.
Stanley Reed, Yukos Shareholders Awarded About $50 Billion in Court Ruling, N.Y. TIMES (July 28, 2014),
http://www.nytimes.com/2014/07/29/business/international/yukos-shareholders-awarded-about-50-billion-in-
court-ruling.html?_r=0.
44
See, e.g., LYNN SAVERY, ENGENDERING THE STATE: THE INTERNATIONAL DIFFUSION OF WOMEN’S HUMAN RIGHTS (2007).
45
MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT (2006).
significance as a result of complex institutional efforts by actors who obviously have a

46
normative stake in piercing the sovereignty veil of the state at issue. But the moment
they pierce the veil, these same actors have a clear interest in defining the degree of
permeability that they will permit in the new jurisdictional membrane of that state. Often,
the only way to identify these actors and to understand the legal mechanisms pursuant to
which they operate is to go beyond conventional threshold questions of statehood or
governmental legitimacy.
II. Ukraine Crisis Under International Law
Thus far, it should be clear that the Ukraine crisis triggers numerous issues that call into
question the effectiveness and coherence of the international legal order. The exceptional
positivist analyses on the intersection of territorial integrity and self-determination in this
volume attest to the broad range of arguments available within that discourse, which, even
though it explicitly sets itself in opposition to politics, nonetheless acknowledges the moral
47
stakes in each of these deliberations. Thus, rather than attempt to assess the various
disputed rationales for Russia’s actions in Ukraine from one’s own default positivism—such
as the application of Badinter or Kosovo precedents to Russia’s tortured history with
48
doctrinal innovations in the field of self-determination —it may be more useful to
consider how this crisis is viewed in broader international-legal-political terms by four key
actors: U.S., EU, Russia, and China. These views are crucial to understanding how
international legal strategies are being currently developed and deployed to restructure
49
the global order:
U.S.: Russia’s actions violate settled norms of non-interference in the

sovereignty of another state; Russia is returning to 19th century international
rules in a 21st world; Russia is an aggressor guilty of the supreme crime, starting a
50 51 52
war of conquest; Russia is a reawakened empire; “Fuck the EU!”; because of
46
See Roth, supra note 30, at 400–03 (describing the tensions within international law’s conception of the
domaine réservé and, more generally, critiquing the Badinter practice of muddying doctrinal bright lines between,
for example, constitutional and international law, with moral and political considerations).
47
See Jure Vidmar, The Annexation of Crimea and the Boundaries of the Will of the People, 16 GERMAN L.J. 365
(2015); see also Roth, supra note 30; BRAD ROTH, SOVEREIGN EQUALITY AND MORAL DISAGREEMENT (2011).
48
Bill Bowring, Positivism Versus Self-Determination: the Contradictions of Soviet International Law, in
INTERNATIONAL LAW ON THE LEFT: RE-EXAMINING MARXIST LEGACIES, 133 (2008); Boris N. Mamlyuk, Russian International
Law and Indeterminacy: Cold War and Post-Soviet Dynamics, in THE LEGAL DIMENSION IN COLD WAR INTERACTIONS:
SOME NOTES FROM THE FIELD, 81, 84–87 (Tatiana Borisova & William Simons, eds., 2012).
49
Vladimir S. Kotlyar, International Law and Contemporary Strategic Conceptions of the USA and NATO,
DIPLOMATIC ACADEMY, MINISTRY OF FOREIGN RELATIONS OF RUSSIAN FEDERATION (2007), http://www.dipacademy.ru/
(unpublished habilitation thesis) (In Russian).
50
Kerry’s Interview with NBC News on Ukraine, Middle East, U.S. DEPT. OF STATE, (Mar. 2, 2014) available at
http://translations.state.gov/st/english/texttrans/2014/03/20140302295198.html#ixzz3V3HK4Gir (“This is an act
Russia’s invasion, U.S., U.K. and EU have a strategic, but also possibly legal
53
(Budapest Memorandum ), obligation to provide financial and military assistance
to the post-Yanukovich government; broad sectoral and targeted financial
sanctions are an effective punitive and remedial mechanism under international
54
law for dealing with ‘outlaw’ states.
EU: See above, minus the obvious. Russia must be sanctioned for invading
Ukraine; the sanctions must not be so significant that they harm domestic
economic actors in the sanctioning state; Ukraine crisis shows the need for a
55
stronger collective security mechanism (reexamination of NATO, Article 5, and
doctrinal disputes regarding conditions triggering defense obligations in
56
asymmetrical or hybrid war settings [cyberwar; support for proxy intra-state
secessionist movements; etc.]); implementation of Minsk 2 agreement is an
of aggression that is completely trumped up in terms of its pretext. It’s really 19th century behavior in the 21st
century . . .”).
51
Boris N. Mamlyuk, Intervention and Colonialism as Responses to Alleged Fascism, OPINIO JURIS BLOG (Mar. 17,
2014), http://opiniojuris.org/2014/03/17/ukraine-insta-symposium-intervention-colonialism-responses-alleged-
fascism/.
52
This refers to a notorious incident in which an intercepted recording of a telephone call between Victoria
Nuland (United States Assistant Secretary of State for European and Eurasian Affairs) and Geoffrey Pyatt
(Ambassador of the United States to Ukraine) was leaked to news outlets. In the telephone call, where Nuland
discusses her preferences for various high-level government positions in the immediate post-Yanukovich period,
Nuland is overhead stating: “Fuck the EU…” The statement was not denied by the U.S. State Department, which
referred to the interception and leak of the call as a new low in Russian tradecraft. For context on the EU’s anxiety
regarding U.S. politics vis-à-vis Ukraine and EU; See, e.g., Michael Bolle & Oliver Fläschner, The European Union:
Stability Despite Challenges, 4 BALTIC J. EUR. STUD. 20 (2014).
53
The Budapest Memorandum was a four-party 1994 agreement between UK, US, Russia and Ukraine, pursuant
to which Ukraine agreed to transfer its nuclear weapons (deployed and stockpiled) to Russia, in exchange for
guarantees respecting the territorial integrity of Ukraine. The status of the Memorandum under international law
is unclear, although signatory states could make a very compelling argument that it is legally binding as a treaty.
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, 2001 I.C.J.
40.
54
See SIMPSON, supra note 1. On 28 July 2014, the U.S. government accused Russia of testing land-based cruised
missiles in violation of the Intermediate Range Nuclear Forces Treaty (1987); US Says Russia Breached Nuclear
Treaty, THE GUARDIAN (July 28, 2014), http://www.theguardian.com/world/2014/jul/29/us-says-russia-breached-
nuclear-treaty.
55
North Atlantic Treaty Art. 5, Apr. 4, 1949, 34 U.N.T.S. 243; Bruno Simma, NATO, the UN and the Use of Force:
Legal Aspects, 10 EUR. J. INT’L L. 1 (1999).
56
For an overview of Russia’s conception of hybrid war, see Outi Korhonen, Deconstructing the Conflict in
Ukraine: The Relevance of International Law to Hybrid States and Wars, 16 GERMAN L.J. 452 (2015); see also
Sascha-Dominik Bachmann & Håkan Gunneriusson, Hybrid Wars: 21st Century’s New Threats to Global Peace and
Security, 43 S. AFR. J. MIL. STUD. 77 (2014), available at:
http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2506063.
important stress-test for the effectiveness of EU good offices; NATO expansion;

regional trade integration is a zero-sum game and is closely bound up with
57
security considerations.
Russia: Russia generally maintains a hyper-formalist, positivist approach to

international law, including arguing against evolving customary doctrines of
humanitarian intervention/R2P, expansive legal justifications for international war
58
on terrorism, and preemptive self-defense; international law arises as a result of
59
concordance of wills (Tunkin); in light of multipolarity, states are entitled to
60
competing international legal positions; Russia has privileged international legal
positions in its near-abroad as a result of its unique status as “continuator” to the
61
Soviet Union and as a result of various regional integration agreements; regional
integration should not be a zero-sum game and Ukraine should be permitted to
join both the EU and the Eurasian Customs Union; U.S. is responsible for Ukraine
62
crisis at every stage; ‘Western’ arguments regarding Crimea are hypocritical, as
the ‘West’ unrepentantly intervenes and violates sovereignty (tu quoque); Crimea
has special historical significance for Russia (supposed place of baptism of
Vladimir who brought Christianity to Kievan Rus; Sevastopol as formally-
designated ‘Hero City’ following WWII; etc.), and was unlawfully transferred to
the Ukrainian S.S.R. by Khrushchev, which corroborate Russia’s claim for historical
63
reunification (German reunification as precedent) (historical argument); Russia
is supporting Crimean internal and external self-determination claim because of
the threat from Ukrainian ultra-nationalists, whom Russia brands fascists or neo-
Nazis (political/historical argument); Russia’s actions in Crimea were supported by
57
George Christo, European Union Security Logics to the East: The European Neighbourhood Policy and the
Eastern Partnership, 19 EUR. SEC. 413 (2010).
58
See Kotlyar, supra note 49.
59
G.V. IGNATENKO & O.I. TIUNOV, INTERNATIONAL LAW: A TEXTBOOK FOR HIGHER EDUCATION INSTITUTIONS 18, 96–99 (4th ed.
2005) (In Russian).
60
Id. at 9; LAURI MÄLKSOO, RUSSIAN APPROACHES TO INTERNATIONAL LAW 109 (2015) (describing Tunkin’s and other
Soviet/post-Soviet Russian theorists rejection of Western blueprints for a “world state”).
61
See IGNATENKO, supra note 59, at 11. The issue of whether Russia is a state successor or occupies a sui generis
place as a ‘continuator’ of the Soviet Union is an incredibly complex and consequential matter under international
law. See JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 427 (8th ed. 2012) (discussing Russia’s
status as “continuator” of the Soviet Union in diplomatic practice, and particularly at the United Nations). I am
grateful to William Butler for noting this crucial point.
62
Lavrov: US Escalated Ukraine Crisis at Every Stage, Blamed Russia, RT (Feb. 7, 2015),
http://rt.com/news/230219-lavrov-munich-speech-ukraine/.
63
Anton Moiseienko, What Do Russian Lawyers Say About Crimea?, OPINIO JURIS BLOG (Sept. 24, 2014),
http://opiniojuris.org/2014/09/24/guest-post-russian-lawyers-say-crimea/.
64
doctrine of intervention by invitation (positivist/formalist argument); Russia has
a duty to protect not just nationals abroad, but also ‘compatriots’ abroad
(positivist/customary arguments); Russia needs to develop new doctrines of
65
‘humanitarian operations/interventions in self-defense;’ NATO expansion is
offensive action against Russia.
China: Supports strict conceptions of sovereignty; voting pattern (abstention) on

UNGA Resolution 68/262 (on territorial integrity of Ukraine) reflects China’s state
practice of ambivalent and pragmatic engagement with international legal
66
institutions; China acknowledges fait accompli of Crimea and its special
67
significance for Russia; (China within BRICs: use temporary window of neutrality
to consolidate and expand own influence on the international legal and political
68
arena).
From this—as well as from the expert analysis by the contributors in this volume—several
broader observations may be made. First, as Mikulas Fabry notes, one way of thinking
about this crisis is to acknowledge—echoing William Burke-White—that Crimea is Russia’s,
and to study the precedential effect of Crimea on Russia’s continuing efforts in East
Ukraine, and the effect of the Crimean affair on the coherence of the international legal
69
order. Second, we can imagine that “the territorial fruits of Russia’s intervention in
70
Ukraine can be reversed,” and to escape the dangers of extreme pluralism—or even
64
Mikulas Fabry, How to Uphold the Territorial Integrity of Ukraine, 16 GERMAN L.J. 416 (2015). For further reading
on the arguments advanced by Russia, see the collections of essays in the Opinio Juris Ukraine Insta-Symposium
(www.opiniojuris.org) and Oxford Public International Law Debate Map. Debate Map: Ukraine Use of Force,
OXFORD UNI. PRESS (Aug. 3, 2014), http://opil.ouplaw.com/page/ukraine-use-of-force-debate-map; see also Boris
N. Mamlyuk, Intervention and Colonialism as Responses to Alleged Fascism, OPINIO JURIS BLOG (Mar. 17 2014),
http://opiniojuris.org/2014/03/17/ukraine-insta-symposium-intervention-colonialism-responses-alleged-fascism/;
Boris N. Mamlyuk, Russia May Invoke Force Majeure Clause of New START in Response to Possible US Sanctions,
CAMBRIDGE J. INT’L L& COMP. L. BLOG (Mar. 9, 2014), http://cjicl.org.uk/2014/03/09/russia-may-invoke-force-
majeure-clause-new-start-response-possible-us-sanctions/; See Özsu, supra note 8.
65
Vladimir Putin, President, Russian Federation, Address to Russian Ambassadors and Permanent Representatives
(July 1, 2014), available at https://www.youtube.com/watch?v=uzSZwz_CXT8&feature=youtu.be&t=3m30s (in
Russian).
66
G.A. Res. 68/262, U.N. Doc. A/RES/68/262 (Mar. 27, 2014); See Roth, supra note 30, at 387 (noting the voting
pattern at the UN General Assembly showed 100 votes affirming territorial integrity of Ukraine, eleven against,
and expressing disappointment that fifty-eight members abstained, and twenty-four were absent from the vote).
67
Chinese Premier Won’t Say If Crimea’s Annexation Was Illegal, RADIO FREE EUROPE/RADIO LIBERTY (Mar. 15, 2015),
http://www.rferl.org/content/china-statement-crimea-annexation-anniversary/26901691.html.
68
Asian Infrastructure Investment Bank (AIIB), www.aiibank.org; New Development Bank (formerly BRICS
Development Bank), available at: http://ndbbrics.org/.
69
See Fabry, supra note 64.
70
Id.
nihilism—and to avoid collapsing law into politics, we can develop positivist arguments to
exemplify how Russia’s actions violate settled principles of international law. This type of
analysis will not by itself return Crimea to Russia given the limits of international law’s
71
remedial mechanisms, but clear expressions of outrage at Russia’s illegal conduct
become policy-relevant in subsequent deliberations, such as ongoing legal and policy
debates over whether to provide lethal aid to Ukraine or to extend multilateral sanctions
against Russia.
The problem with channeling our default positivism to issues of territorial integrity (TI),
non-intervention (NI), or self-determination (SD), is that these debates often omit far more
important issues, both broader and narrower, of international law. In other words, this
framing is simultaneously over-inclusive/over-determined, and under-inclusive/under-
72
determined. Analyses focused on TI, NI, and SD (or non-international armed
conflict/international armed conflict) elide several broader issues, as examined below.
III. Lawfare, Disinformation & International Law
Positivist accounts fail to acknowledge the role of information warfare or propaganda in

fracturing and reconstructing the international legal order and the way in which the
information war has emerged as a new form of lawfare. Posivitist international legal
analyses of an ongoing security challenge—like positivistic social science, usually, though
73
not necessarily —rely on empirical data, such as polling results, quantitative reports
regarding troop presence, movements, and capacity, as well as ancillary factual
circumstances that serve to define the moral terms of our engagement with a given actor
74
on the international plane. There is zero doubt that Russia has deployed significant
71
See generally REMEDIES IN INTERNATIONAL LAW: THE INSTITUTIONAL DILEMMA (Malcolm Evans, ed., 1998); see also
CHRISTINE D. GRAY, JUDICIAL REMEDIES IN INTERNATIONAL LAW (2002).
72
MARTTI KOSKENNIEMI, supra note 45, at 591–97; MARTTI KOSKENNIEMI, THE POLITICS OF INTERNATIONAL LAW 339–42
(2011).
73
For a classic treatment of the fact/law distinction, and an analysis of fact-becoming-law processes, see HANS
KELSEN, A GENERAL THEORY OF LAW AND STATE (Anders Wedberg trans., 2009).
74
Victoria Nuland, TransAtlantic Security Challenges: Central and Eastern Europe (Apr. 10, 2014),
http://www.foreign.senate.gov/download/nuland-testimony-4-10-14; Nick Cumming-Bruce, U.N. Cites Abuses in
Crimea Before Russia Annexation Vote, N.Y. TIMES (Apr. 15, 2014),
http://www.nytimes.com/2014/04/16/world/europe/un-cites-abuses-in-crimea.html (reporting on statement of
then-United Nations’ High Commissioner for Human Rights, Navi Pillay, that
[f]acts on the ground need to be established to help reduce the risk

of radically different narratives being exploited for political ends […]
People need a reliable point of view to counter what has been
widespread misinformation and also speech that aims to incite
hatred on national, religious or racial grounds . . .
resources in shaping the factual narrative surrounding the Ukraine crisis and is deploying a
highly-choreographed propaganda/disinformation machine aimed at three distinct
audiences: (1) Purely domestic; (2) the Russian-speaking near-abroad; and (3) foreign
75
audiences. But it is also important to understand that other states have explicitly
responded in kind, casting a partisan light on even factual or journalistic reports, not to
76
mention expert opinions, surrounding the Ukraine crisis. In such an atmosphere,
international lawyers can base their legal analyses on their own intuitions regarding the
One of the most tragic, but by no means unique, instances of the politicization of fact-gathering processes in the
Ukraine crisis has been the controversy regarding the downing of MH17 on 17 July 2014. See Excerpt of Address
of Vitaly Churkin, Russia’s Ambassador to the United Nations’ 7221th meeting (July 21, 2014), available at
https://www.youtube.com/watch?v=qhIJ4vjUl4Q (calling for impartial and independent international
investigation into the MH17 incident through the framework of ICAO); Jens David Ohlin, Control Matters: Ukraine
& Russia and the Downing of Flight 17, OPINIO JURIS BLOG (July 23, 2014),
http://opiniojuris.org/2014/07/23/control-matters-ukraine-russia-downing-flight-17/ (considering state
responsibility arguments for holding Russia culpable/liable for downing of MH17 while acknowledging several
conflicting empirical accounts regarding the shootdown).
75
David M. Herszenhorn, Russia Is Quick to Bend Truth About Ukraine, N.Y. TIMES (Apr. 15, 2014),
http://www.nytimes.com/2014/04/16/world/europe/russia-is-quick-to-bend-truth-about-ukraine.html; Russia
Warns of Ukraine Gas Cuts; Nuland Touts “Truth-Telling Campaign,” DEMOCRACY NOW (Apr. 11, 2014),
http://www.democracynow.org/2014/4/11/headlines (describing testimony of Assistant Secretary of State for
European and Eurasian Affairs Victoria Nuland before the U.S. Senate Foreign Relations Committee). The way in
which Russia is typically said to exert control over information is through state control over means of mass
communication, including the English-language outlet, RT. But the Kremlin has also operationalized seemingly
apolitical administrative agencies, such as Rossotrudnichestvo (Federal Agency for the Commonwealth of
Independent States, Compatriots Living Abroad and International Humanitarian Cooperation, a federal agency
with oversight over Russia’s near-abroad), to shape the factual narrative over the Ukraine crisis, specifically to
counter what Russia perceives as an information war against it. See, e.g., Rossotrudnichestvo, Information War
Against Russia (translation of an article from El Nuevo Diario) (Mar. 18, 2015), http://rs.gov.ru/press/news/8091
(In Russian).
76
On 2 December 2014, for instance, Ukraine established a Ministry of Information Policy, whose stated goal is to
counter Russian propaganda in Ukraine. SUPREME COUNCIL OF UKRAINE, Міністр інформаційної політики України,
(Dec. 2, 2014), http://www.kmu.gov.ua/control/uk/publish/article?art_id=247789675&cat_id=247077361; RWB
Opposes Creation of Information Ministry, REPORTERS WITHOUT BORDERS (Dec. 2, 2014), http://en.rsf.org/ukraine-
rwb-opposes-creation-of-02-12-2014,47325.html;, State’s Nuland at House Hearing on Situation in Ukraine, U.S.
DEPART. OF STATE (Mar. 4, 2015),
http://translations.state.gov/st/english/texttrans/2015/03/20150304313897.html#ixzz3V482DdQ1 (Statement of
Assistant Secretary of State for European and Eurasian Affairs:
And on Russia’s propaganda, we’re working with the Broadcasting

Board of Governors to ramp up efforts to counter lies with truth. This
year, the BBG is committing $23.2 million to Russian-language
programming, a 49 percent increase over FY14, and is requesting an
additional $15.4 million for FY16. We are also requesting more than
$20 million in foreign assistance and public diplomacy funds to
counter Russian propaganda through training for Russian-speaking
journalists; support for civil society watchdogs and independent
media; exchange programs for students and entrepreneurs; and
access to fact-based news on the air, on front pages and online.
on-the-ground reality—such as Roth’s assessment of the “general plausibility to the claim

that some substantial majority [in Crimea] favored the region’s transfer to Russian
77
control”— or the lawyers can agitate for bolder steps, such as the recognition of the
limitations of international legal institutions’ fact-finding capacity, and, specifically in
78
Ukraine, an honest observation that OSCE monitoring functions have been impinged,
leading to a distorted and incomplete picture of the battlefield.
There are countless other illustrations of the way that disinformation distorts our
international law analysis. One of the clearest examples emanates from the august halls of
the United Nations Security Council, in the way that basic translation tasks and results have
arguably become politicized and distorted. For instance, in a widely reported 28 August
2014 direct admission of the presence of so-called Russian volunteers in Eastern Ukraine,
Russia’s Ambassador to the United Nations, Vitaly Churkin, made the following statement:
77
See Roth, supra note 30, at 390.
78
Mstyslav Chernov & Peter Leonard, Ukraine’s Cease-Fire Deal Hurt by Deception, CTV NEWS (Mar. 21, 2015),
http://www.ctvnews.ca/mobile/world/ukraine-s-cease-fire-deal-hurt-by-deception-1.2290795 (“Evidence is
emerging, however, that the warring sides are leading [OSCE] monitors on a time-wasting game of hide-and-
seek.”).
Всем известно, что Everyone There are Everyone Everyone

на востоке knows that Russian knows that knows that
Украины есть there are volunteers in there are there are
российские Russian Eastern Parts Russian Russian
добровольцы. volunteers in of Ukraine. No volunteers in volunteers in
Этого никто и не eastern parts one is hiding eastern eastern
скрывает. of the that. No one Ukraine; Ukraine.
Ukraine; no is hiding that. no one Nobody is
one is hiding conceals the hiding this.
that. fact.
Хотелось бы, We would like We would like One could It would be

чтобы to see similar to see similar wish that desirable if
аналогичную transparence transparence there could certain other
транспарентность shown by shown by be similar states showed
проявили и other other transparency analogous
некоторые другие countries. countries. in certain transparency.
страны. other
countries.
Пусть наши For example, For example, Let us hear Let our
американские maybe our maybe our what our American
коллеги American American American colleagues
расскажут, чем colleagues can colleagues can colleagues explain what
занимаются в tell us about tells us about have to say tens of
здании Совета what the tens what the tens about what American
обороны и of American of American dozens of advisors are
безопасности advisors who advisers and American doing in the
Украины десятки in the building the building of advisers are building of the
американских of the the cream doing in the Ukrainian
советников. Пусть Ukrainian security Ukrainian Ministry of
расскажут, Security consular are Defence Defense and
сколько Council are doing – of the Council State Security.
американских doing. Or how Ukrainian building, or Let them
наемников из так many so- consular are how many explain how
назы-ваемых called doing them American many
охранных Ukrainian and the mercenaries Americans are
предприятий mercenaries mercenaries from so-called fighting in so-
воюют в тысячах from so-called are waging private called private
километрах от military war military military firms
своих берегов. enterprises thousands of contractors thousands of
are waging kilometers are fighting kilometers
war away from thousands of away from

thousands of their land. kilometers their shores.
kilometers from their
away from shores.
their land?
Откуда у Where did the Where did the How come How come the
украинских Ukrainian security forces American newest
силовиков security forces get their weapons American
появились get the latest latest systems have weapons
80 81
новейшие weapons? weapons? shown up in systems have
американские the Ukrainian ended up in
системы armed Ukrainian
79 82 83
вооружения? forces? hands?
Illustration 2: Table of Translations of Address by Vitaly Churkin, Aug. 28, 2014
The point here is not to give empirical credence to Ambassador Churkin’s assertions but to
emphasize that errors such as these—whether made unintentionally, mid-sentence, by the
UN Verbatim Reporting Service, or by a rogue translator—on arguably the most
consequential issue in the Ukraine crisis—who exactly is conducting military operations on
the territory of Ukraine?—call into question our discipline’s most foundational
methodological premises, for example, that even if we know that states will have
conflicting policy positions in time of conflict, we can at least obtain an uncompromised
84
expression of a given state’s position by accessing UN records. Further, given the on-
demand expectations of contemporary polities, the speed with which a mistranslation or
factual error can enter and influence policy deliberations or legal analyses is typically
79
Transcript of original Russian speech spoken into the record. Vitaly Churkin, Russian Ambassador to the United
Nations, Address to the United Nations, at the United Nations Security Council 7253rd Meeting (Aug. 28, 2014),
available at http://webtv.un.org/watch/ukraine-security-council-7253rd-meeting/3754452835001; U.N. S.C.
Provisional Rep. S/PV.7253 (Aug. 28, 2014), [hereinafter Provisional Report] available at http://daccess-dds-
ny.un.org/doc/UNDOC/PRO/N14/519/51/PDF/N1451951.pdf?OpenElement (emphasis added).
80
See id.
81
C-Span automated transcription of UN Verbatim Reporting Service Russian-English translator. U.N. Security
Council Meeting on Ukraine-Russia Conflict, (C-Span broadcast Aug. 28, 2014), http://www.c-
span.org/video/?321183-2/un-security-council-meeting-ukraine (emphasis added).
82
See Provisional Report, supra note 79.
83
Author’s translation.
84
Official Document System of the United Nations, available at http://documents.un.org; The United Nations Live
& On-demand, available at http://webtv.un.org.
85
instantaneous. Against the broader context for what arguably precipitated the crisis—the
implications of the Snowden disclosures on U.S.–EU relations and Anglo-American versus
global relations (e.g., Five Eyes spying on allied and adversary heads of state and UN
86
officers; state-sponsored espionage for private commercial gain; global cyber
disinformation campaigns)—the fact that the domain of information has emerged as a
central battlefield in the new Cold War should cause pause in the minds of those who rely
87
on empirical data points to draw normative conclusions.
International law does not have a toolkit for identifying—let alone remedying—these types
of problems. The conventional guarantees States had to assure that that state’s version of
events remains uncompromised—such as diplomatic immunity, burden of proof in
international legal proceedings, state participation in multilateral monitoring missions—
seem stressed. Recalling the major translation mistake above, it would seem that if anyone
stood to benefit from documenting and exposing the way that Russian delegates’ positions
85
Robert Mackey, Senator Inhofe Shows Fake Photos of Ukraine War, (C-Span broadcast Feb. 13, 2015),
http://www.c-span.org/video/?c4528166/senator-inhofe-shows-fake-photos-ukraine-war; Robert Mackey, Sifting
Ukrainian Fact from Ukrainian Fiction, N.Y. TIMES (Feb. 13, 2015),
http://www.nytimes.com/2015/02/14/world/europe/sifting-ukrainian-fact-from-ukrainian-fiction.html.
86
Jack Goldsmith, The Precise (and Narrow) Limits On U.S. Economic Espionage, LAWFARE BLOG (Mar. 23 2015),
http://www.lawfareblog.com/2015/03/the-precise-and-narrow-limits-on-u-s-economic-espionage/; Paul Walden,
The Economic Blowback from NSA Spying Begins, WASH. POST (Mar. 21, 2014),
http://www.washingtonpost.com/blogs/plum-line/wp/2014/03/21/the-economic-blowback-from-nsa-spying-
begins/.
87
Ukraine’s New Bail-out: The Austerity to Come, THE ECONOMIST (Feb. 12, 2015),
http://www.economist.com/blogs/freeexchange/2015/02/ukraines-new-bail-out-0 (stating:
This morning the International Monetary Fund (IMF) announced that

it would probably grant Ukraine a new bail-out. How big is it? Some
have reported a $17.5 billion bail-out; others a $40 billion figure. In
fact, the ‘new’ bail-out is only worth around $5 billion. That is
because the IMF already pledged $17 billion back in April, of which
only $5 billion has been actually disbursed. In other words, the fund
is making good old promises, rather than offering any new cash.
Christine Lagarde, the head of the IMF, hopes that by the time other
Western donors pile in, Ukraine will get about $40 billion-worth of
cash. That is very optimistic. If the IMF disburses all the money it has
promised, it will disburse about $18 billion over the next four years.
America and the European Union have, vaguely, promised about $2
billion each. That together leaves us a long, long way short of $40
billion. Tim Ash, of Standard Bank, is blunt: ‘This is NOT a significantly
increased IMF programme, and Ms Lagarde should not try and sell it
as such.’)
(emphasis in original); Merkel's Remark On 'Criminal' Annexation Omitted In Russian Translation, RADIO FREE
EUROPE/RADIO LIBERTY (May 12, 2015), http://www.rferl.org/content/russia-merkel-putin-translation-criminal-
word-omitted/27011285.html.
are mistranslated and misinterpreted, it would be none other than Russia, a permanent
member of the UN Security Council. Yet the fact that this, and doubtless other, factual
infelicities are allowed to stand begs far deeper questions regarding a given state’s fidelity
to: (1) Its own factual narrative and stated policy preferences; (2) truth as a moral virtue;
and, of course, (3) international law as a medium for reconciling the preceding
considerations with the competing interests of other states on the international plane.
Beyond epistemic or axiological concerns, international law also seems remarkably ill-
equipped to tackle four related problems that arise from the weaponization of
information. First, international law does not understand how to study lawfare or other
88
clandestine legal orders, nor has it fully grasped its complicity in these projects. How does
one study clandestine legal orders—for example, surveillance, drones, torture, lawfare—to
assess legitimacy when the very object of one’s study is: (1) By definition, hidden; (2)
fiercely vindictive; (3) likely to become more hidden in future affairs once uncloaked?
Second, despite a rigorous turn to institutions in fields like economics and law and
development, contemporary international law seems incapable of analytically capturing,
let alone speaking to, the dynamic institutional patterns of global information production
89
and transfer. International law supposes that civil society monitors the space between
the prohibition of incitement to violence and human rights guarantees of free speech, but
the recent loss of faith in the neutrality of particular civil society organizations—e.g.,
Human Rights Watch—or diffused interest-shaping processes like “spotlight effects” and
90
“compliance pulls” must entail a comprehensive study into the way these sets of actors
and processes may be operationalized as weapons of lawfare. Third, if one way of
controlling an information battles pace is by delegitimizing and discrediting particular
actors within that space, international lawyers must heed the ways in which international
legal argument is used to accomplish this task. Lastly, given how routine translation may
become an instrumentality of lawfare, international law should take scrupulous
methodological care in approaching plural discourses, especially in moments of
91
extraordinary tension.
88
DARIUS REJALI, TORTURE AND DEMOCRACY 411–12 (2007) (tracing the evolution of global torture regimes across
centuries to observe a shift away from overt scarring to stealth or clean torture that leaves no marks, and hence,
gives the torturer plausible factual deniability, which, in turn, absolves torturers from legal liability) (“Public
monitoring, then, is still the critical variable that makes elites behave as they do.”).
89
Arthur Larson, The Present Status of Propaganda in International Law, 31 LAW & CONTEMP. PROBS. 439 (1966).
(explaining that the issue of disinformation is not a new one for international law) (“The exponential rate at which
information technology has transformed over the past fifty years militates in favor of revisiting previous attempts
to monitor, if not regulate, propaganda, with a view towards developing new paradigms of thinking about
information flows and controls in the [twenty-first] century.”).
90
Harold Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2634, 2651–55 (1997) (describing Israel’s
decision to obey the Oslo accords, in part, because “the relative openness of Israel’s liberal democratic society
created multiple channels to spur it forward: through public opinion, the news media, and other mechanisms of
public accountability faced daily by Netanyahu and his party”).
91
See Dolidze, supra note 17.
IV. Unstable Domestic/International Binary
Analyses that begin and end with conventional threshold statehood questions—TI, SD, NI,
etc.—also typically overlook the important fact that the previously rigid line between
external and internal attributes of self-determination has been blurred conceptually,
92
doctrinally, and in the field to the point where, for certain states, talking about formalist
attributes of statehood without foregrounding that discussion with concrete politico-
economic analyses becomes impossible. Outi Korhonen’s mapping of the various
institutional, economic, and social forces within Ukraine that have contributed to the crisis,
93
and that are redefining Ukraine’s legal and constitutional order is highly instructive here.
Gazing within the state apparatus and within the opaque world of an influential post-
Soviet commercial entity shows that domestic and global actors work in predictable ways
such as sweeping legislative reforms and the availability of financing conditioned on
structural adjustment and austerity policies, and also in unconventional manners—for
example, the over $1 billion litigation in the High Court of Justice in London between two
94
rival economic-political clans in Ukraine over control of key economic assets. The key
insight of Korhonen’s analysis is that all of these legal strategies and conflicts operate
95
simultaneously on both domestic and international planes. In other words, a seemingly
pedestrian contract dispute currently being litigated in London between several Ukrainian
oligarchs may be more dispositive on the issue of Ukraine’s future than positivist accounts
96
on the doctrine of non-intervention. It is crucial to understand the process by which
international law aids in concealing these domestic, private law disputes from the gaze of
92
David Kennedy, The Mystery of Global Governance, 34 OHIO N.U. L. REV. 827 (2008); William E. Butler, Russia and
the WTO System: Law, Regionalism, and Politics, 44 U. MEM. L. REV. 599, 616 (2013).
93
Outi Korhonen, Decontstructing the Conflict in Ukraine: The Relevance on International Law to Hybrid States
and Wars, 16 GERMAN L.J. 452 (2015).
94
Leonid Bershidsky, Ukraine’s Oligarchs Are at War (Again), BLOOMBERGVIEW (Mar. 20, 2015),
http://www.bloombergview.com/articles/2015-03-20/ukraine-s-oligarchs-are-at-war-again-; Richard Balmforth,
Ukrainian Oligarch Under Fire After Night Raid on State Oil Firm, REUTERS (Mar. 20, 2015),
http://www.reuters.com/article/2015/03/20/us-ukraine-crisis-kolomoisky-idUSKBN0MG2A320150320. The
conflict in issue in Kiev is an attempt by Igor Kolomoisky—an oligarch who was appointed by the post-Yanukovich
government as governor of Dnipropetrovsk—to maintain control over a major energy pipeline operating
company, which had recently been seized by representatives of the Poroshenko government.
95
Korhonen, supra note 93. For broader discussion regarding the need for an empirically-grounded understanding
of the way that business clans play a constitutive role in various legal structures, see TEEMU RUSKOLA, LEGAL
ORIENTALISM: CHINA, THE UNITED STATES, AND MODERN LAW Ch. 3 (2013); see also ANNELISE RILES, COLLATERAL KNOWLEDGE:
LEGAL REASONING IN THE GLOBAL FINANCIAL MARKETS (2011) (analyzing the various ways that private governance
regimes relating to collateral in financial transactions have emerged as a “quiet nexus of tremendous political and
economic legitimacy—within the market, the government, and the wider political sphere”).
96
James Marson & Nick Shchetko, Ukraine President Ousts Fellow Tycoon as Regional Leader, WALL. ST. J. (Mar.
25), http://www.wsj.com/articles/ukraine-ousts-regional-leader-kolomoisky-1427265254.
statehood inquiries. On one level, international law’s insistence on the normative

supremacy of formal legal norms and processes over other levers of influence indicates
that concerns regarding witness tampering, murder, forced disappearance, corruption,
political pressure, destruction of evidence, and so forth in Pinchuk v.
97
Bogolyubov/Kolomoisky, for example, may be compartmentalized by certain actors
through claim construction into private law causes of action or, worse still, into far more
98
narrow evidentiary or discovery disputes. Therefore, they may appear formally irrelevant
to the question of the legitimacy of the appointment of someone like Kolomoisky as
governor of a contested region in eastern Ukraine, and to the question of legality
surrounding the actions of Kolomoisky’s private military organization under either
99
Ukrainian or international law. Even if the issues fall within the ambit of human rights
law, the lack of robust human rights prosecution mechanisms or political will in these
contexts assures the effective decoupling of so-called public and private disputes. Queries
into informal governance regimes that constrain these political choices in the Ukraine crisis
would certainly facilitate a more workable power sharing agreement. Yet few such
analyses are apparent.
Moreover, an understanding of the interrelationship between these types of disputes in

the Ukraine crisis—problematizing the distinction between traditionally public and private
100
international law, and international/municipal law —may actually shed more light on
how international law structures our range of prescriptive options in a crisis like that in
contemporary Ukraine. Specifically, the conservative and status quo-perpetuating legal
presumption favoring the rights of an ostensibly united population, or at least a population
that has expressed its sovereign will through some sort of democratic or majoritarian
97
Pinchuk v. Bogolyubov, (unreported) EWHC (Comm) QB. (breach of contract claim by one Ukrainian billionaire
against two rival Ukrainian billionaires arising out of privatization of a large energy company and pipelines) (Eng.).
98
Jim Armitage, ‘Evidence Destroyed’ in War of the Tycoons, THE INDEPENDENT (Apr. 18, 2014),
http://www.independent.co.uk/news/business/news/evidence-destroyed-in-war-of-the-tycoons-9268761.html.
99
Cathrin Kahlweit, Der Oligarch zeigt Kiew die Muskeln [Oligarch Shows Kiev His Muscles], SÜDDEUTSCHE ZEITUNG
(Mar. 25, 2015), http://www.sueddeutsche.de/politik/ukraine-der-oligarch-zeigt-kiew-die-muskeln-1.2409673
(“What looks like the end of the internal war for dominance in the energy sector, in fact, may result in a real war
for control of those regions in eastern Ukraine, which have not yet been controlled by the pro-Russian
separatists.”) (German); Konrad Schuller, Der gestürzte Oligarch und der Rechte Sektor [The Fallen Oligarch and
Right Sector], FRANKFURTER ALLGEMEINE ZEITUNG (Mar. 26, 2015),
http://www.faz.net/aktuell/politik/ausland/europa/ihor-kolomojskijs-entmachtung-inszenierte-
abschiedszeremonie-13505871.html?printPagedArticle=true#pageIndex_2 (describing the creation of military
command structures by Kolomoisky that essentially consolidate de facto joint staff control over the various
volunteer units within Ukraine and reporting that this informal association of battalion leaders is without legal
basis and was created on the grounds that it was the only way the alleged weaknesses of the official army
leadership could be compensated) (in German).
100
Dan Danielsen, How Corporations Govern: Taking Corporate Power Seriously in Transnational Regulation and
Governance, 46 HARV. INT’L L. J. 411 (2005), available at http://www.harvardilj.org/wp-
content/uploads/2011/03/HILJ_46-2_Danielsen.pdf.
choice—a presumption inherent in the doctrines of territorial integrity and democratic

governance—firstly foregrounds the legal rights of a unitary state vis-à-vis competing
101
claims to internal self-determination. Similarly, it also gives preference to these so-called
first order questions over inquiries into the legitimacy of the governmental actors said to
represent the will of the nation by, among other things, relying on a normative political
theory that reifies the will of a particular group of predetermined people typically
102
identified with that state. Both the doctrine of trial by ordeal and international law’s
permissive stance on external assistance to local forces crushing separatist uprisings lose
much of their moral force when one considers that it is not merely foreign states who are
actually providing external assistance to states trying to “crush internal efforts at territorial
fragmentation,” but that various foreign-domestic and private-public actors are using
private means to suppress the uprising as a way of consolidating economic control over
key industries, often in a way that is ambivalent to the actual political contours of the
103 104
subsequent settlement. Kolomoisky, in short, may not care whether his private army
controls industrial infrastructure in a frozen conflict zone, a nominally independent
statelet, a unitary Ukraine, or in an LNR/DNR annexed by Russia. International law, if it
persists in claiming moral high ground, should care.
V. Positivist Statehood v. Regional/Global Governance
Third, the emphasis on positivist accounts of inter-state relations—such as those between

Russia and Ukraine—obscures the far more important role of international law in
facilitating the reorganization of global economic power along new regional or global lines.
We can illustrate this by reference to the earlier observation regarding the way that
international law is premised on the creation of various globalized and universalist
regimes—for example, UN, WTO, etc.—but simultaneously reifies the idea of a hermetic
nation-state. In the Ukraine crisis, this has meant the use of international legal argument
101
Roth, supra note 30 (stating:
Such a ‘trial by ordeal’ doctrine is not as completely bereft of moral

logic as it may initially appear. External assistance to separatist forces
has been a notorious means of both great power predation and
regional mischief. Moreover, however arbitrary state boundaries may
be, settled bases for re-configuration tend to be elusive.[).]
102
Zoran Oklopcic, The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights
and Constitutional Paradoxes, 16 GERMAN L.J. 658, 661 (2015) (“Irrespective of its frequent association with radical
nationalism, the vocabulary of a nation’s territorial rights is one of the dominant ways to justify the legitimacy of
territorial sovereignty in normative political theory.”).
103
Roth, supra note 30, at 412 (“States were licensed to crush internal efforts at territorial fragmentation; only
when they proved confessedly unwilling or decisively unable to do so did they lose their legal claim to territorial
integrity.”).
104
Pinchuk, (unreported) (Eng.), at paras. 1–2.
by domestic politicians when justifying requests for debt forgiveness or appeals for
developmental aid to the EU and/or U.S. Contemporaneously, an inverted form of this
argument is raised to completely foreclose the possibility of intervention or development
assistance to another actor with clearly identified policy interests in the state at issue.
Viewing post-Cold War (1989–2013) color revolutions/interventions collectively, it seems
that the modus operandi of collective security after the demise of the U.S.S.R. has been
105
characterized by a pragmatic and genuine concern with coalition building, tactical
alliances even with declared adversaries—such as the U.S. campaign alongside Syria and
Iran against ISIS—and instrumentalist willingness to partner with ostensible Great Power
106
rivals—for example, Russian participation in post-2003 Iraq oil-sector reconstruction;
Russian acquiescence in America’s use of the Transit Center at Manas, Kyrgyzstan, in
support of war effort in Afghanistan. Notwithstanding the bellicose bluster of George W.
107
Bush’s statement “You’re either with us, or against us[,]” U.S. and EU member states’
policy practice in the post-Cold War/pre-Ukraine crisis moment seemed to reflect a
pragmatic ‘big-tent’ approach to international politics. Even states that opposed particular
interventions were afforded operational space and limited freedom of action within the
state on the receiving end of intervention so long as they brought capacity to contribute in
108
some meaningful way.
The Ukraine crisis is different. It seems to signal an end to post-Cold War pragmatism—at
least on the plane of inter-Great Power relations—and, at least superficially, appears to
usher in a return to something akin to economic bloc politics, with the bifurcated
international legal plane that implies. Recalling the trade partnership negotiations between
Ukraine and EU, and the separate negotiations between Ukraine and Russia in 2013, one of
the Russian proposals urged Ukrainian accession in both the EU and the Russian-led
Eurasian Customs Union. From a geopolitical standpoint, this would have been a net win
for Europe, Ukraine, and Russia. The EU would have obtained the security, technical
standardization, and structural adjustment guarantees it sought. Russia would have
expanded its already significant bilateral trade with and investment in Ukraine, and it
would have had firmer legal guarantees of Ukraine’s status as a transit state for Russian
energy flows to Europe, such as the enforcement of performance obligations under various
105
Martti Koskenniemi, The Place of Law in Collective Security, 17 MICH. J. INT’L L. 455 (1995–1996), available at
http://heinonline.org/HOL/LandingPage?handle=hein.journals/mjil17&div=20&id=&page=.
106
Russia’s Second Largest Oil Producer Enters First Week of Operations in Iraq, ALBAWABA (Mar. 30, 2014),
http://www.albawaba.com/business/lukoil-iraq-565042.
107
George W. Bush, Pres. of the US, Address to a Joint Session of Congress and the American People (Sept. 20,
2001), available at http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html.
108
The most recent example of this could be China’s recent announcement to begin air strikes or otherwise
contributing to the anti-ISIS effort in Iraq, given that Iraq has recently overtaken Russia in volume of oil sold to
China, second only to Angola.
109
public/private agreements with Ukraine and Ukrainian firms. Ukraine, for its part, could
have bargained for substantial financial assistance from both Russia and the EU, helping to
resolve its chronic fiscal problems in a meaningful and sustainable way. On a doctrinal
level, there are no formal barriers to this type of arrangement. In fact, state practice
demonstrates the remarkable adaptability of international legal forms to precisely these
types of regional trade arrangements; the EU’s Eastern Partnership Program itself is a
prime example, as are the on-going negotiations concerning the Trans-Pacific Partnership
110
(TPP) and the Transatlantic Free Trade Area. The point here is not to evaluate the
normative merits of a given policy proposal but to highlight the remarkably capacious
nature of the spaghetti bowl of multilateral (GATT, TRIPS) and regional trade agreements
and to explore how actors use international legal arguments to give preference to
particular forms over others. The intense pressure applied upon Ukraine to make its
European choice suggests that new forms of economic lawfare have emerged that clearly
111
promote particular types of liberalization discourses over other such discourses. This,
too, should be significant for international lawyers for it seems to complicate the original
liberal state thesis on which much of contemporary normative international legal theory is
112
grounded.
Despite the compatibility of a EU–Ukraine–Russia arrangement with existing international

legal practice and the broadly adopted policy of trade liberalization—in which Russia would
effectively have had to harmonize its trade/investment/governance policies with the EU—
Ukraine’s fateful decision to reject Russia’s proposal evinces the latest, and most
significant, step in the restructuring in the global political economy and in international
law. First, it conclusively ended Ukraine’s ad hoc status as a more or less neutral transit
state that could exact concessions from actors on both ends of the transit corridor and
effectively ended Ukraine’s buffer state security status. Second, as an ally with both the
U.S. and the EU, post-Yanukovich Ukraine seems to have effectively moved from a Eurasian
leaning trade configuration to a European oriented security configuration. By itself, there is
nothing remarkable about this switch under international law, given that any sovereign
and independent nation is presumed to have complete freedom of action in making these
109
William Kratzke & Dmitri Titoff, Russia and the WTO: Realpolitik by the Rules of Free Trade, 44 MEM. L. REV. 633
(2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2461777.
110
See, e.g., Peter Van Elsuwege, EU-Belarus Relations: Coping With the Reality of the Eurasian Economic Union, in
THE EUROPEAN UNION AND REPUBLIC OF BELARUS: GETTING CLOSER FOR BETTER FUTURE 256 (2014) (discussing place of
Belarus in EU’s Eastern Partnership Program, and prospect of concluding new bilateral association agreements,
including provisions on the establishment of Deep and Comprehensive Free Trade Areas (DCFTAs), but noting that
future of EU-Belarus integration hinges on issues of political compatibility).
111
See generally EURASIAN ECONOMIC INTEGRATION: LAW, POLICY AND POLITICS 179, 197 (Rilka Dragneva & Kataryna
Wolczuk eds., 2013).
112
See Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT’L L. 503 (1993); Jose
Alvarez, Do Liberal States Behave Better? A Critique of Slaughter’s Liberal Theory, 12 EUR. J. INT’L L. 183 (2001).
types of choices, so long as they do not violate jus cogens norms or preexisting treaty
commitments. Charter statehood remains foundational doctrinally, but it may be that
outside of the very narrow context of Great Power sovereignty, statehood arguments
retain purchase only insofar as they background a state’s choice to choose one or another
regional trade/security configuration.
VI. Positivism Ignores Temporality & Processes of Legal Change
Lastly, the remarkable aspect of Ukraine’s about-face on the issue of participation in the
Eurasian Customs Union was the speed and ease with which the shift from a concrete
Russian trade deal to an inchoate European roadmap was effectuated in Ukraine, and the
deployment of international legal argument to marshal public support and throttle
opposition to this realignment. One possible explanation for why the radical reversal of
policy was accepted by Ukrainians so soon after the ouster of Yanukovich was that the
process of delegitimizing Russia as an international legal actor, and the Eurasian Customs
113
Union as a restoration of Soviet empire, had started long before the annexation of
114
Crimea, before the ouster of Yanukovich, and before Maidan. The parallels in legal
arguments deployed against the regimes of both Yanukovich and Putin—suppression of
dissent as human rights violations and rampant corruption as contrary to international
115
governance norms—served to further delegitimize both associatively. Understanding
how these arguments are deployed by particular actors such as the EU can explain at least
116
one vector in the possible future tactical use of lawfare. When an otherwise stable
113
Anders Åslund, Sergey Glazyev and the Revival of Soviet Economics, 29 POST-SOVIET AFF. 375 (2013), available at
http://www.tandfonline.com/doi/abs/10.1080/1060586X.2013.809199.
114
As Gerry Simpson writes, our conceptions of the international legal order have always had inclusive (pluralist)
and exclusive (anti-pluralist) streams, often, again, simultaneously. Simpson, supra note 1. States, in turn, may
choose to isolate or ‘outlaw’ themselves (early Soviet autarky) or they may be isolated by the international
community because of the ultra vires nature of their creation (Iran, North Korea, etc.) or behavior—namely,
Soviet Union as an outlaw state in the eyes of the West based on perceptions of aggression (Hungary,
Czechoslovakia, Afghanistan), and anti-liberalism. A state may also declare itself to be an outlaw, or an anti-law
state, as the early Soviet experience with international law makes clear. Simpson, supra note 1, at 261 (Nazis
viewed the USSR as an anti-state). But as Simpson, Roth, and many others note, the move away from
universalism/homogeneity towards a greater acceptance of pluralism typically occurs when an actor (such as the
Soviet state vis-à-vis the League) shows itself capable of maintaining a baseline level of effective control over a
territory, or otherwise signals legitimism. Id.; Roth, supra note 30, at 412 n. 99 (“Successful revolution sooner or
later begets its own legality.”) (quoting STANLEY A. DE SMITH, CONSTITUTIONAL AND ADMINISTRATIVE LAW (1977)); BRAD
ROTH, GOVERNMENTAL ILLEGITIMACY AND INTERNATIONAL LAW 136–50 (1999).
115
Adam Taylor, Russia on Iraq: ‘We Told You So,’ WASH. POST (June 12, 2014),
http://www.washingtonpost.com/blogs/worldviews/wp/2014/06/12/russia-on-iraq-we-told-you-so/ (“[I]t’s
tempting to look at Russia’s positions [against intervention] on various conflicts and wonder whether there was
something to it. . . . Critics might also point out that in Iraq, Libya and Syria, Putin has been unusually vocal in his
support of strongman leaders — like supports like, you could say.”).
116
See, e.g., Rob Knox, Strategy and Tactics, 21 FINNISH Y.B. INT’L L. 193 (2010), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1921759.
domestic socio-political-legal order collapses in the face of populist opposition, it may be

that the collapse is the product of years of more subtle deligitimization by various
international legal actors. Gradual, nearly imperceptible deligitimization sets the stage for
opportunistic usurpations of power when historical circumstances combine to make
likelihood of success high, and—more importantly—they precondition perceptions of
legitimacy and any subsequent acts of recognition by explicitly defining the new
government in oppositional and relational terms to the old. Thus, even if the new
government is corrupt in absolute terms, it is seen as inherently more responsive,
reformable, and legitimate because it came to power with the sanction of the international
community. International law’s under-theorized and inherently indeterminate notions of
temporality then step in to further legitimize the new government and delegitimize the
new opposition simply because “transition will take time,” trapping the society in a
perpetual transition towards viable hoped-for security arrangements and age-old goals of
117 118 119
good government.
The same process repeats domestically. International law conditions political

consciousness, defines national political vectors, and provides legal justification for, say,
punitive actions against the opposition, which are otherwise strictly impermissible under
120
domestic law, or even international legal civil and political rights guarantees, which are
121
subordinated to core statehood concerns in an imagined normative hierarchy. Thus, of
the many remarkable paradoxes of the Maidan revolution, one of the first legislative acts
of the post-Yanukovich era was to disband the democratically elected Communist Party
block—a party holding 32 of the 445 seats in parliament—an issue which a year later
117
U.N. Secretary-General, Island of Palmas Case (Netherlands, USA), 2 U.N. Rep. Int’l Arb. Awards 829. (Apr. 4,
1928); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, 16; see also JULIUS
STONE, SOCIAL DIMENSIONS OF LAW AND JUSTICE 494 (Stanford Univ. Press 1966) (“In the nature of things those who
wielded the transitional state power [in Soviet society] would fix the time-table for this metamorphosis [from
bourgeois legality to communism].”).
118
Oklopcic, supra note 102 (describing disintegration of socialist Yugoslavia from 1991 to Kosovo in 2008 as
territorial fragmentation on “time-release”).
119
John D. Haskell, Will the Real Transitology Stand Up?, 15 BALTIC YEARBOOK OF INT’L L. (2015); Haskell & Mamlyuk,
supra note 36 (discussing different conceptions of temporality in context of post-socialist transition debates
between shock therapists and gradualists).
120
Roth, supra note 30.
121
European Convention of Human Rights arts. 10 (freedom of expression), 11 (freedom of association), 14
(discrimination), Dec. 20, 1971, 14 CETS 194; BERNADETTE RAINEY ET AL., JACOBS, WHITE AND OVEY: THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 476 (2014); David Harris et al., Law of the European Convention on Human Rights, in
UNITED COMMUNIST PARTY OF TURKEY (2014) (explaining that the European Court of Human Rights held that Article 11
of the European Convention on Human Rights extends to political parties, and not merely trade-union-type
associations). United Communist Party of Turkey and Others v. Turkey, App. No. 133/1996/752/951 (Jan. 30,
1998), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58128#{"itemid":["001-58128"]}.
122
remains frozen in litigation. Second, in terms of international law’s influence on
socialization and norm diffusion, sociologists have long documented that “in the Russian
123
mentality the West continues to exist as an ideal.” As a result, assertions of rogue
behavior by the “Western ideal” which Russians seek to emulate may undermine their
faith in their rulers’ ability to bring them closer to that ideal, or paradoxically, it may cause
124
irrational feelings of moral indignation and superiority. In Russia, the result of what
General Philip M. Breedlove, the Supreme NATO Commander in Europe, called “the most
amazing information war blitzkrieg in history,” approval ratings for the ruling regime have
125
climbed to nearly all-time highs, adding to a feedback loop of increased nationalism and
resignation to perennial outlaw status in international law. In Ukraine, similar external
legitimacy critiques contributed to significant mobilization against the Yanukovich regime,
but, irrespective of the political fate of the ruler (which hinges on far more than popular
sentiment), the effect of international legal scrutiny in both instances was the
consolidation of popular grievances and aspirations into largely nationalistic sentiments
and political programs. International law lacks mechanisms for restraining the worst
excesses of nationalism in the wake of regime changes even as it implicitly or explicitly
endorses nationalist conceptions of statehood in legitimating post-‘regime change’
governments. Lastly, international legal arguments are translated into domestic practice
126
even in their most controversial and unsettled forms, such as the dubious, and largely
unexamined, use of anti-terrorism doctrine by the post-Yanukovich government to legally
classify its military operations in the Donbas.
122
Emile Schepers, Judge Withdraws from Ukraine Communist Trial Because Cops Raided His Office, PEOPLE’S
WORLD (Feb. 23, 2015), http://peoplesworld.org/judge-withdraws-from-ukraine-communist-trial-because-cops-
raided-his-office/. The Communist Party opposed armed action against Donbas and presumably would have
opposed IMF bailouts because austerity measures would disproportionately impact its core constituents.
123
Lev Gudkov, Россия переживает рецидив тоталитаризма [Russia is Living Through Recidivism of
Totalitarianism], NOVOE VREMYA (Dec. 16, 2014), http://nv.ua/opinion/Gudkov/rossiya-perezhivaet-recidiv-
totalitarizma--25255.html. In Russian Lev Gudkov is the head of Russia’s Levada Center, one of the most credible
polling organizations in contemporary Russia.
124
Dolidze, supra note 17; Malksoo, infra note 151; Titoff, infra note 125 (stating that:
Psychological compensation is achieved in two ways. The media

make Russia appear nobler (great power, rich culture etc.) and the
media expose flaws and decadence in Western societies. Gudkov
points to the apparent irrationality of the public reaction that
approaches fatalism. He observes that the Russians are deeply
pessimistic about their personal future. By endorsing the Kremlin’s
political course, they derive satisfaction by associating with their
country’s perceived great power behavior.).
125
Dmitri Titoff, Is Russia’s Perceived Insecurity a Sufficient Explanation for War?, SILK ROAD Reporters (Mar. 15,
2015), http://www.silkroadreporters.com/2015/03/15/is-russias-perceived-insecurity-a-sufficient-explanation-
for-war/.
126
Anthea Roberts, Comparative International Law? The Role of National Courts in Creating and Enforcing
International Law, 60 INT’L & COMP. L.Q. 57 (2011).
VII. Positivism as Mute When/Where Most Needed
The above is not to say that positivist analysis should be abandoned altogether in favor of
broader sociological or theoretical inquiries into the ideological/constitutive functions of
127
international law. In fact, the normative takeaway should be quite the opposite. Just as
framing the international legal arguments in terms of TI, NI, and SD—or NIAC/IAC—fails to
capture broader dynamics of global governance, it also is under-inclusive of the much
more significant issues that fall squarely within the ambit of public international law. This
includes pressing material issues, such as: (1) Treaty regimes governing cross-border travel
between Ukraine and Russia for residents of the breakaway republics, and Ukrainian-
Russian migration treaties and state practice in the context of various earlier regional
integration agreements—an issue that affects more than 5 million Ukrainian citizens and is
only partially covered by the Minsk agreements; (2) observance of law of armed conflict in
the ongoing combat operations and application of evolving norms concerning the use of
private military contractors to all sides in the conflict; (3) precedential effect from alleged
128
U.S., EU, or Russian intervention to prevent formation of a regional trade agreement; (4)
nature, function, and limits on the use of emerging global anti-terrorism doctrines in purely
domestic settings; (5) the emerging right to intervene—in non-territorial (namely, cyber)
settings—to protect strategic economic interests; etc. These international legal issues
affect millions of victims of the Ukraine crisis—both inside and out of Ukraine—and the
precedential effect of these vectors of this crisis is likely to be large.
C. Cold War II and International Law
Having broadened the aperture to recall how international law facilitates the piercing of
sovereigntist veils in various contexts—international law furthering globalization in the
fields of trade liberalization, human rights, delegitimization of domestic government
actors, etc.—we also observe the remarkably fluid way in which international legal
arguments are deployed to ‘Balkanize’ particular spaces or ‘Iranize’ particular actors. We
know how international law’s sovereigntist conceptions of statehood can be used against
perceived outlaws in the international community—for example, international law may
127
Introduction: The Future of International Legal Positivism, in INTERNATIONAL LEGAL POSITIVISM IN A POST-MODERN
WORLD 1–12 (Jean d’Aspremont & Jörg Kammerhofer eds., 2014) (exploring range of competing international legal
positivisms, and proposing shared embrace of the need for theoretical refinement, within permissible disciplinary
bounds).
128
To dampen populist Ukrainian hopes for European integration, Russia could sustain a “frozen conflict” in
Luhansk/Donetsk, modeled on Transdniestria. Similarly, a frozen conflict could be advantageous to certain
Western powers or Ukraine, as it may act as an obstacle to any future prospective integration with Russia or a
Russian-dominated Eurasian Economic Union.
129
promote Balkanization through rigid applications of the right to TI, NI, and SD. But
broadening the aperture still further, we can observe how the Ukraine crisis represents a
departure from earlier conceptions of post-WWII and post-Cold War liberal
internationalism, which generally encouraged broad-based political participation by states
in matters of shared importance—from non-proliferation to counter-terrorism all the way
130
to participation in various post-conflict reconstruction settings. Following realist
conceptions of international law, this distinguishing feature may be understood as simply
the age-old realignment of political blocs within the family of nations. But the Ukraine
crisis also arguably signals the start of a new type of conflict in international law, which we
can unpack as a series of myths and reflections.
I. Myth of CWII as Interbloc Rivalry
Seen through Russian eyes, the Ukraine crisis may be said to represent an attempt by
Western states to weaken Russia’s international legal position and, hence, weaken its
standing in global affairs. Consequently, weakening Russia sends a strong signal to other
potential adversaries—China, or the BRICs—that post-Cold War international law remains
131
at its core, a Euro-American political project, and that attempts to disrupt or challenge
this foundational premise will be met with fierce resistance. In this way, the new cold war
can be said to fall along a familiar geopolitical axis: Interbloc rivalry between groupings of
North Atlantic liberal states—with security alliances neatly corresponding to trade pacts;
132
and various groupings of illiberal states—with Sino-Russian trade/security alliances.
Between the two extremes, there is the potential of a non-aligned movement, but at its
core, a Cold War posture necessarily implies a two-bloc rivalry. Therefore, even attempts
by the EU to open a discursive space for responses to the Ukraine crisis that fall short of
arming Ukraine are met as something like outlaw behavior in its own right. “Fuck the EU . .
. .” suddenly shifts from a crude expression of contempt for European sensibilities, to being
a concise and literal reminder to Western European powers that it was the U.S. that served
129
Roth, supra note 30, at 384. (“By sweepingly prohibiting inter-state exertions of coercion and force (while
licensing such exertions within state boundaries), the international legal order has effectively privileged
sovereignty arrangements that frustrate these [intra-state] communities’ demands for self-governance.”).
130
DAVID KENNEDY, OF WAR AND LAW 41 (2006). In contrast to realists, liberal internationalists generally see
international relations in positive-sum, versus zero-sum terms. See NOAH FELDMAN, COOL WAR: THE FUTURE OF GLOBAL
COMPETITION 171–172 (2013); cf. ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD
POLITICAL ECONOMY 98–105 (1984).
131
R. P. Anand, Equality of States in an Unequal World: A Historical Perspective, in Sovereign Equality of States,
197 RECUEIL DES COURS 52 (1986); Diane A. Desierto, Postcolonial International Law Discourses on Regional
Developments in South and Southeast Asia, 36 INT’L J. L. INF. 387, 387 (2013).
132
Cf. Brian Carlson, Russia-China Gas Deal a Sign of Russian Weakness, Not New Alliance, FOREIGN POLICY INST.,
JOHNS HOPKINS UNIV., SCH. OF ADVANCED INT’L STUDIES (June 4, 2014), available at http://www.fpi.sais-
jhu.edu/#!RussiaChina-Gas-Deal-a-Sign-of-Russian-Weakness-Not-New-
Alliance/c1qvb/54c690900cf2ad5dc6e2cd8b.
as a guarantor of European peace, reconstruction, and prosperity throughout the Cold War
133
and post-Cold War period. As mentioned earlier, however, the danger of the myth of
Cold War II as new bloc politics (U.S.-UK; EU; BRICs) is that this framing typically
foregrounds inchoate regional or even ‘civilizational’ political forces while marginalizing far
more concrete political economic forces and actors.
II. Myth of “Cold War II” as Cold War I
The Ukraine crisis and Cold War II can also be viewed as a continuation of the twentieth
134
century’s Cold War. This argument is raised in Anglophone and Russian foreign policy
circles, typically by reference to surface parallels between the Anglo-American/Western
European versus Russian/Sino-Russian conflict of yore, and its present day incarnations.
For an international lawyer, the problem with this view is self-evident given that
international law has remarkably little positive law to “apply” to a conflict conceived in
these terms. On the one hand, international law’s engagement with the Cold War can be
said to have been episodic. In fact, the marginalization of international law from actual loci
of power—manifest in the Cold War stalemate postures within the UN Security
135
Council —was one of the defining features of the Cold War. On the other hand, as we
have seen from the conceptualization of CWII as a legal institution and as opening new
potentialities in the use of lawfare, CWI can also be revisited as a legal institution—
constitutive of international law in the 20th century and constraining our imaginations to
that present day. This is arguably true for every field of international law, from the
Western-Soviet debates over the doctrines of sources, to self-determination and
intervention. In this way, international law was not just a central battlefield in the Cold
War; the Cold War was international law.
A broad claim like the one above is naturally subject to the caveat that Cold War historians
often disagree on whether a definitive account of the Cold War is possible, or even
136
advisable. But most historians acknowledge that a defining feature undergirding this
conflict was the notion that the Cold War was above all a war of ideas to ascertain which
133
See George Friedman, Europe: Destined for Conflict?, CHICAGO COUNCIL ON GLOBAL AFFAIRS (Feb. 4, 2015)
http://www.thechicagocouncil.org/event/europe-destined-conflict (lecture by founder of private intelligence
firm, Stratfor, regarding U.S. foreign policy positions vis-à-vis the EU and individual European states).
134
See STEPHEN F. COHEN, SOVIET FATES AND LOST ALTERNATIVES: FROM STALINISM TO THE NEW COLD WAR (2011).
135
Boris N. Mamlyuk, Uniting for Peace in the Second Cold War: A Response to Larry Johnson, AM. SOC. INT’L J. (July
21 2014), available at http://www.asil.org/blogs/uniting-%E2%80%9Cpeace%E2%80%9D-second-cold-war-
response-larry-johnson.
136
Odd A. Westad, The Cold War and the International History of the Twentieth Century, in CAMBRIDGE HISTORY OF
THE COLD WAR, at 2 (Melvyn P. Leffler & Odd A. Westad eds., 2010).
137
economic model—liberal capitalism or socialism—was more resilient. It is important to
emphasize that while particular models of social or political organization were important
components of the ideological standoff, they were not essential, or dispositive, factors in
the East-West standoff.
If we choose to define CWII in aforementioned binary terms like US-Russia, liberal-illiberal,

democratic-undemocratic, or even liberal capitalist-state capitalist—then based on the
138
above—it would be a mistake to view the present conflict as a continuation of CWI. This
is because despite claims to the contrary, there is no foundational ideological difference
between the principal combatants in this conflict. Even the most vocal and articulate
proponents of a contemporary Russian ideational divergence with the West take pains to
139
identify the precise contours of the supposed ideological difference. In the words of
Timothy Snyder, for instance:
The Eurasian Union is the enemy of the European

Union, not just in strategy but in ideology. The
European Union is based on a historical lesson: that the
wars of the twentieth century were based on false and
dangerous ideas, National Socialism and Stalinism,
which must be rejected and indeed overcome in a
system guaranteeing free markets, free movement of
people, and the welfare state. Eurasianism, by contrast,
is presented by its advocates as the opposite of liberal
140
democracy.
Snyder goes on to trace the ideology of the Eurasian Union to Alexander Dugin, the
controversial Russian political theorist/mystic—a contemporary Rasputin—who claims that
Russia should restore its traditional primacy in Eurasian affairs under the broad banner of
141
Russian Orthodoxy and conservative Christian social values. Snyder continues:
The fundamental political logic of the European Union

is that there’s a positive relationship between civil
137
See Vladimir O. Pechatnov, Soviet-American Relations Through The Cold War, in OXFORD HANDBOOK OF THE COLD
WAR 107, 109 (Richard Immerman & Petra Goedde eds., 2013) (describing competing Cold War strategies as
resting on the ultimate objective of a complete military or economic defeat of the other).
138
See Boris N. Mamlyuk, Cold War Protagonists, in ‘THE BEST IN THE WEST': EDUCATOR, JURIST, ARBITRATOR: LIBER
AMICORUM IN HONOUR OF PROFESSOR WILLIAM BUTLER 54 (2014).
139
Åslund, supra note 113.
140
Timothy Snyder, Fascism, Russia, and Ukraine, in N.Y. REV. OF BOOKS (2014).
141
Id.
society, sovereignty and integration. Civil society helps

sovereignty, integration helps sovereignty. Where a
sovereign state is weak, civil society can help. European
integration can also help. The Russian proposition is to
take away integration and to take away civil society,
and leave sovereignty all by itself. That’s a different
political theory . . . . This is not the version of Europe
142
we have come to know.
These types of arguments are serious attempts to identify and describe ideological rifts,
143
but polemical assertions of difference are not compelling without empirical support. It is
to be expected that any state power aspiring to a measure of sovereignty would define
itself in opposition to perceived U.S. hegemony, given how politically effective that
argument is vis-à-vis domestic and global constituencies in the contemporary moment. In
what Alexander Cooley has described as normative jujitsu:
Russia has been at the forefront of publicly flagging the

West’s own normative and legal inconsistencies. The
meme of US hypocrisy and accusations that
Washington routinely practices of double standards has
gained traction, especially in the wake of US
government complicity in torture or violations of civil
liberties. Stripped of its allegedly universal and
consistent values framework, liberal order is nothing
144
but raw geopolitics.
Second, the authorities frequently invoked in support of the claim that Russia aspires to
rebuild a ”civilizational space” or particular sphere of influence are far more nuanced than
145
frequently acknowledged by particular Anglophone analysts, or Russian advocates of this
142
Paula Chertok, Timothy Snyder: Ukraine is But One Aspect of a Much Larger Strategy that Threatens European
Order, EUROMAIDAN PRESS (Mar. 18, 2015), available at http://euromaidanpress.com/2015/03/18/timothy-snyder-
ukraine-is-but-one-aspect-of-a-much-larger-strategy-that-threatens-european-order/.
143
See, e.g., Andrei Tsygankov, Vladimir Putin’s Last Stand: The Sources of Russia’s Ukraine Policy, 31 POST-SOVIET
AFF. 279, 294–95 (2015), available at http://www.tandfonline.com/doi/pdf/10.1080/1060586X.2015.1005903
(“The problem with the imperialist argument is that it overstates Putin’s ideological commitment and willingness
to go as far as Russian nationalists would want him to go.”).
144
Alexander Cooley, Ukraine’s Insta-Symposium Russia’s Rule-breaking as Power Politics, OPINIO JURIS,
http://opiniojuris.org/2014/03/07/russias-rule-breaking-power-politics/#sthash.HnjG3RTR.dpuf.
145
See, e.g., Paul Grenier, Distorting Putin’s Favorite Philosophers, CONSORTIUM NEWS (Mar. 27, 2015), available at
https://consortiumnews.com/2015/03/27/distorting-putins-favorite-philosophers/.
146
thesis. Third, although purportedly “illiberal” in political form, Russia has arguably
completed its ‘liberal’ turn in terms of privatization, liberal commercial law reform, and
147
accession to the multilateral liberal trade regime. Russia, as Vladimir Putin remarks in
148
various economic and legal forums, is more than “open for business,” suggesting that
149
Russia aggressively protects foreign investor rights. Or, as an experienced
Kremlinologist, Scott Horton, notes:
It’s also important to note—and I think this is

something very few outside observers do understand—
that within the Russian political and intellectual world,
Putin and [Dmitry A.] Medvedev belong to the liberal
tradition. Their stronger, potential opposition are more
reactionary, more conservative, more authoritarian
than they are. That will probably come as a surprise to
150
most people on the outside, but that’s true.
Lastly, an imagined civilizational conflict between Russia and the U.S. is also a non-starter,
given that both states are multicultural, largely Christian, and trace their ontological roots
151
to the same fountainhead: European Enlightenment thinking.
More generally, regardless of the moniker ascribed to one state or another in terms of its
faithfulness to some broadly-defined creed—liberal, neoliberal, illiberal, developmentalist,
“new-statist,” and so forth—globalization has resulted in unprecedented harmonization,
standardization, and convergence in actual economic practice:
146
Id.; Alexander Lukin, What the Kremlin Is Thinking: Putin’s Vision for Eurasia, FOREIGN AFFAIRS (July/Aug. 2014),
https://www.foreignaffairs.com/articles/russia-fsu/2014-06-16/what-kremlin-thinking.
147
Russia was recognized as a “market economy” by the EU on 29 May 2002. The United States recognized Russia
as a “market economy” on 7 June 2002. See Russian Democracy Act of 2002, H.R. 2121 (2002), available at
https://www.govtrack.us/congress/bills/107/hr2121/text; See EU Announces Formal Recognition of Russia as
“Market Economy” in Major Milestone on Road to WTO Membership, EUROPEAN COMMISSION (May 29, 2012),
availible at europa.eu/rapid/press-release_IP-02-775_en.pdf; W.E. BUTLER, RUSSIAN FOREIGN RELATIONS AND
INVESTMENT LAW (2006).
148
See generally, St. Petersburg International Economic Forum, http://www.forumspb.com/.
149
WILLIAM E. BUTLER, supra note 147; WILLIAM E. BUTLER, FOREIGN INVESTMENT LAW IN THE COMMONWEALTH OF
INDEPENDENT STATES (2002); cf. Stanley Reed, Yukos Shareholders Awarded About $50 Billion in Court Ruling, N.Y.
TIMES (July 28, 2014), http://www.nytimes.com/2014/07/29/business/international/yukos-shareholders-awarded-
about-50-billion-in-court-ruling.html?_r=0.
150
Interview by Myron A. Farber, The Rule of Law Oral History Project 8: The Reminiscences of Scott Horton (Nov.
21, 2012).
151
Cf. Lauri Malksoo, The History of International Legal Theory in Russia: A Civilizational Dialogue with Europe, 19
EUR. J. INT’L L. 211 (2008).
Behind these major shifts in social policy lie important

structural changes in the nature of governance. Given
the neoliberal suspicion of democracy, a way has to be
found to integrate state decision-making into the
dynamics of capital accumulation and the networks of
class power that are in the process of restoration, or, as
in China and Russia, in formation. Neoliberalization has
entailed, for example, increasing reliance on public–
private partnerships (this was one of the strong ideas
pushed by Margaret Thatcher as she set up ‘quasi-
governmental institutions’ such as urban development
corporations to pursue economic development).
Businesses and corporations not only collaborate
intimately with state actors but even acquire a strong
role in writing legislation, determining public policies,
and setting regulatory frameworks (which are mainly
advantageous to themselves). Patterns of negotiation
arise that incorporate business and sometimes
professional interests into governance through close
and sometimes secretive consultation . . . . The shift
from government (state power on its own) to
governance (a broader configuration of state and key
elements in civil society) has therefore been marked
under neoliberalism. In this respect the practices of the
neoliberal and developmental state broadly
152
converge.
Therefore, an argument that premises the start of a second cold war on a supposed
liberal/illiberal divide may actually conceal the true source, and likely direction, of the
conflict by, yet again, reifying the state—even a self-professed deviant from abstract liberal
values—as the fundamental unit of analysis in subsequent inquiries into the nature of the
conflict. This applies particularly when the argument fails to include more rigorous
empirical studies showing Russia’s or another state’s divergence from contemporary
neoliberal economic best practices. Unlike in CWI, when nearly total economic embargoes
were the primary mechanism by which battle lines were drawn, globalization has assured
that national boundaries can no longer serve as rigid lines of demarcation in the new
153
conflict. In addition to its many observed harmonizing effects, globalization has also
152
DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM, 76–77 (2005) (citations omitted).
153
See, supra note 147 (discussing financial cross-ownership between global firms and actors as an attribute of
globalization).
brought heterogeneity in modes of socio-economic organization within and between

states to the point where ascribing an ideological bent to a state becomes an essentializing
act useful only as a descriptive heuristic. For these reasons, a “CWII as CWI” argument
resting on an imagined ideological confrontation between an illiberal Russia and a liberal
154
“West” remains a one-dimensional realist view of CWII. Several alternative ways of
thinking about CWII may be more useful.
III. Myth of “Cold War II” as a Legal Institution or as Lawfare?
This last myth needs to be considered given the prominence now attached to the concept
of lawfare in some circles, but it is far harder to grasp with rigor than even the
aforementioned conceptually slippery ways of conceiving of the Ukraine crisis under
international law. To start, one can suppose that any war—“hot” or Cold—has a legal form,
and can be thought of as a legal phenomenon, or even a legal institution with a particular
set of practices, professional ethics, and formal/informal dispute resolution
155
mechanisms. International lawyers are keenly aware that norms are often ignored by
actors, but the assertion of legal supremacy over more immediate prudential
considerations in a conflict is typically said to provide various channeling, progressive
development, spotlight, or broadly educational functions with the hope that it leads to
156
greater compliance—if not now—then over a prolonged period of non-compliance.
Deploying legal arguments against transgressors, even when they are met with contempt
157
or counterclaims, also serves to register moral disapproval.
154
See Korhonen, supra note 93 (“These suggestions disregard law’s endemic symbiosis with power structures and
come up with old catch-all explanations that . . . the more void of meaning [they are] the more ubiquitous they
become, for example ‘the new cold war.’”); see also Feldman, supra note 130.
155
See D’ASPREMONT, supra note 127.
156
Stephen Holmes & Ivan Krastev, Ukraine Is Not the New Yugoslavia, It’s Worse, MOSCOW TIMES (Mar. 26, 2015),
http://www.themoscowtimes.com/opinion/article/ukraine-is-not-the-new-yugoslavia-it-s-worse/518089.html
(stating that
The West’s motivations in Ukraine, too, seem more pedagogical than

strategic: to show Putin that changing borders by force is
unacceptable in Europe today. The hope is that economic sanctions,
together with Russian casualties on the ground, will force Russia
humbly to accept its post-Cold War status as a third-rate power,
while sending the additional message that any effort to revise
the U.S.-led world order is doomed to fail — with serious economic
costs.[).]
157
Roth, supra note 30, at 394 (discussing the “intellectually dishonesty” of the Badinter Commission and ICJ’s
Kosovo decision in redefining existing doctrine to accommodate prevailing moral reaction to Serb nationalism and
ethnic violence in the region following the dissolution of Yugoslavia).
Phrased differently, even where a warring party or combatant acts “outside” the legal
framework, or “violates international law,” law nonetheless remains constitutive of the
158
way power is exercised, even if the exercise of said power is said to be unlawful. In this
view, the abstentions of China, India, Brazil, and others on the UN vote concerning the
territorial integrity of Ukraine are just as important and legally significant—in that they
forewarn of competing voting blocs in opposition to future “Western”—EU, U.K., U.S.—
interests—as the predictable post hoc vote concerning Russian aggression to the issue of
Ukraine’s territorial integrity. The rhetoric of legality, or claims of illegality, often constitute
effective tactical options in their own right—a reality captured in the controversy over the
159
very term lawfare. A compelling argument that a nation is violating international law can
mobilize the “international community,” and perhaps more importantly, galvanize the
160
constituencies within the member states comprising the international community.
Moving beyond Ukraine, several examples help to illustrate this point: (1) The use of
chemical weapons in Syria against civilian populations is so universally deplorable—and so
contrary to settled international legal norms—that ‘humanitarian intervention’ is not just
161
necessary, but is arguably mandated by the doctrine of responsibility-to-protect (R2P);
(2) The Islamic Republic of Iran’s very existence—including its original ‘unlawful’ founding;
theocratic form of government; state sponsorship of terrorist organizations; incursion into
Iraq under the pretext of combatting ISIS; nuclear aspirations—violates international law
and must be punished by effective targeted financial sanctions, trade embargos, or precise
162
armed strikes, with broad-based support from the international community; (3) China’s
South China Sea claims violate international maritime law and must be counterbalanced by
collective diplomatic and economic pressure, and if necessary, military action.
While they assert the centrality of law in each of these examples, international lawyers are
innately mindful of the limitations of legal argumentation in actually providing a roadmap
for the resolution of the policy dispute at issue. The traditional place of the international
legal practitioner in these security matters was to provide principled legal arguments in
158
SIMPSON, supra note 1; Roth, supra note 30 (describing Russia’s practice of still upholding a norm even as it
violates it).
159
Charles J. Dunlap, Jr., Lawfare Today: A Perspective, 3 YALE J. INT’L AFF. 146 (2008).
160
David Rivkin, Lee Casey, Lawfare, WALL ST. J. (Feb. 23, 2007),
http://www.wsj.com/news/articles/SB117220137149816987 (“The term ‘lawfare’ describes the growing use of
international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral
advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and
international tribunals.”).
161
Spencer Zifcak, The Responsibility to Protect After Libya and Syria, 13 MELBOURNE J. INT’L L. 59 (2012), available
at https://www.law.unimelb.edu.au/files/dmfile/downloaddad11.pdf.
162
John Bolton, To Stop Iran’s Bomb, Bomb Iran, N.Y. TIMES (Mar. 26, 2015),
http://www.nytimes.com/2015/03/26/opinion/to-stop-irans-bomb-bomb-iran.html?_r=0.
163
support of ‘their’ government’s position. As with domestic lawyering, the only real
limitation on the international lawyer’s ability to make good faith arguments in support
of—or against—a given position is one’s set of personal and professional ethical
164
commitments. When the lawyer’s ethical commitments come up against the
government client’s choice to act against the lawyer’s counsel, we are reminded that the
practitioner can always step aside or, at most, may choose to actively critique a
165
government’s position.
Next, it is important to explicitly lay bare several implications inherent in the fact that
international law is no longer merely the language of diplomatic relations or a set of
processes for the resolution of particular narrow disputes between nominally equal
166
sovereigns. As all lawyers understand, legal arguments can be deployed for various
tactical purposes in a conflict, whether to bolster negotiating leverage, to discredit an
opponent, or perhaps to sow the conditions for a future—far more consequential—
conflict. And while the instrumentalist use of international legal processes is not a new
phenomenon, contemporary international legal practice has broadened the scope and
reach of international law far beyond its traditional province of governing inter-state
relations or serving as a Trojan horse for the insertion of particular legal codes past
167
sovereignty firewalls. Today, international law is part of the everyday vernacular of
politically conscious classes in Tahrir or Maidan, and it is increasingly part of the lexicon of
mass populations affected by human rights abuses, environmental catastrophes, and mass
internal displacement. The popularization of international law as a frame of reference for
popular discourse on global governance matters has meant that international legal
arguments can now be deployed for highly effective politicization uses against domestic
and global audiences—not merely for the articulation of narrowly-constructed claims and
not merely by state actors. Thus, beyond the conflation of international and domestic
policy matters into a type of legal discourse where decoupling the two becomes
conceptually impossible—for instance, the need to sustain large domestic fiscal deficits to
sustain foreign military and aid spending—the popularization of international law furthers
the realization of something like the long-imagined normative supremacy of the
international over the domestic, in several subtle ways.
163
See, for example, Martti Koskenniemi, The Place of Law in Collective Security, 17 MICH. J. INT’L L. 455 (1995);
DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM (2005).
164
John D. Haskell, Taking Risks Ethically, 22 FLORIDA J. INT’L L. 285 (2010).
165
For an analogous expression of political will in the academic context, see Matthew Craven et al., We Are
Teachers of International Law, 17 LEIDEN J. INT’L L. 363 (2004).
166
Chris Borgen, The Crimea, Compliance, and the Constraint of International Law, OPINIO JURIS (Mar. 3, 2014),
available at http://opiniojuris.org/2014/03/03/crimea-compliance-constraint-international-law/.
167
YVES DEZALAY, BRYANT G. GARTH, THE INTERNATIONALIZATION OF PALACE WARS: LAWYERS, ECONOMISTS, AND THE CONTEST TO
TRANSFORM LATIN AMERICAN STATES (2002); UGO MATTEI & LAURA NADER, PLUNDER: WHEN THE RULE OF LAW IS ILLEGAL
(2008).
First, in the narrowest monist sense, the popularization of international law can beget
louder calls for adherence to settled international norms from a greater numbers of
political constituents. Second, by transposing international legal arguments into domestic
168
political arenas, domestic political actors can take advantage of popular sentiment to
register gains vis-à-vis other domestic political actors—for example, U.S. Republican
legislative efforts to apply pressure upon an ostensibly “weak” Democratic President on
the issue of, say, providing lethal aid to Ukraine. Third, within the American political
context, the promotion of international law and international legality coincides with visions
169
of American primacy in global affairs—typically in terms that span the political spectrum.
Lastly, just as the Cold War offered the necessary pretext for continuation of massive
wartime defense spending—so vital to the expanding military industrial complex in the
170
United States and elsewhere —the popularization of international humanitarianism,
171
liberal internationalism, and hegemonic exceptionalism, may serve the policy of
galvanizing popular support for military expenditures to attain military primacy. Military
primacy, in turn, is translated through international legal forms into normative supremacy
on the hegemon’s terms. Lawfare, in other words, can be deployed both domestically and
globally and its first order targets may actually be domestic and foreign polities, rather
172
than rogue or outlaw states.
Moreover, as Julian Ku points out, the recent suggestion that the United States should use
lawfare against Russia—championed by the same individuals who helped to popularize the
173
term and decried its use against the U.S.—is unlikely to be effective for two reasons.
168
See, e.g., Russian Aggression Prevention Act of 2014, S.2277 (2014), available at
https://www.congress.gov/bill/113th-congress/senate-bill/2277.
169
Contrast Robert Kagan, Superpowers Don’t Get to Retire, BROOKINGS (May 26, 2014),
http://www.brookings.edu/research/opinions/2014/05/26-superpowers-dont-retire-kagan, with Anne-Marie
Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT’L L. 503 (1995); Anne-Marie Slaughter, Law
Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 COLUM. L. REV. 1907 (1992).
170
THE ECONOMIC IMPACT OF THE COLD WAR: SOURCES AND READINGS (James L. Clayton ed., 1970) (regarding expansion
of U.S. defense sector following WWII); CHRISTOPHER SIMPSON, BLOWBACK: AMERICA’S RECRUITMENT OF NAZIS AND ITS
DESTRUCTIVE IMPACT ON OUR DOMESTIC AND FOREIGN POLICY 56–65 (1988) (discussing U.S. government recruitment of
former Nazi military, intelligence, and scientific cadres to support the case of continued Soviet threat, in part, to
sustain and expand congressional budget appropriations for U.S. defense spending).
171
Kagan, supra note 169.
172
Alexander Lebedev & Vladislav Inozemtsev, The West is Wrong to Write Off Ukraine’s Debts, THE GUARDIAN
(Apr. 13, 2015), http://www.theguardian.com/world/2015/apr/13/ukraine-debts-lebedev-corruption (“Between
2010 and 2014, Ukraine was something unknown in modern history—a private state. . . . The sometimes private
state should be countered with private international justice—and only this will ensure that the corruption of the
past will not be repeated.”).
173
Julian Ku, Should the U.S. Use “Lawfare” Against Russia?, OPINIO JURIS (Apr. 9, 2014),
http://opiniojuris.org/2014/04/09/u-s-use-lawfare-russia/#sthash.ZfUcmf8T.dpuf. The original Wall Street Journal
First, lawfare is particularly effective when conducted in U.S. domestic venues, where
procedural rules allow for broad discovery and protracted litigation, and there are
presumably limited ways to bring Russian actors to court in the U.S. Second, Ku argues that
lawfare tactics distract policymakers from achieving more important strategic objectives,
such as increasing sanctions and increasing military aid. But as Scott Horton points out,
there is another, more fundamental, problem with lawfare, and particularly lawfare
against Russia:
One thing that I think has also not been tracked very
much is that there is a direct parallel between [Russian
politically-motivated extraterritorial assassinations] and
American ideas about targeted killing; that is, that the
Russians, at the highest level, within the FSB [Federal
Security Service] and military intelligence—they track
extremely closely how the United States rationalizes its
own drone program, its own targeted-killing program—
the legal and policy rationale. I have actually seen
documents that have come from the FSB, classified
documents that were made available by a defector I
interviewed, in which they talk about this. They talk
about how, when these killings are carried out, they are
to be justified with exactly the same rationales used by
the United States. The targets will be characterized as
terrorists, or people who are consorting with terrorists,
giving them material aid and so forth. There will be
statements that there was no ability to deal with them
through police means; that they constituted some
immediate threat. So all the same language that the
174
United States uses, they use as a rationale.
Lawfare claims, in other words, inspire echo chamber lawfare counterclaims—the end
result of which can either be victory by one of the combatants, or the wholesale
propagation of legal nihilism, with all the unsavory consequences that entails. Lawfare
piece by Rivkin and Casey claimed that lawfare was damaging the U.S. by trapping it in litigation and restricting its
freedom of action in critical respects. The authors argued that Al-Qaida, for instance, was instructing its fighters
to claim that they were tortured so as to attain sympathy from domestic and global polities. The subsequent
piece by Rivkin and Casey seems to endorse lawfare tactics against Russia by encouraging the “U.S. and its allies
[to] challenge the legality of Russia’s actions in every conceivable legal venue, whether domestic or
international.” David Rivkin & Lee Casey, The Outlaw Vladimir Putin, WALL ST. J. (Apr. 8, 2008),
http://www.wsj.com/news/articles/SB10001424052702304640104579485331656203834.
174
Horton, supra note 150, at 11 (emphasis added).
175
against lawfare, of course, equals warfare. Rather than broadly defining CWII as the
competing use of international legal mechanisms to articulate/advance differing
ideological positions, a lawfare conception of CWII opens two distinct vectors amenable to
rigorous empirical or theoretical study: (1) micro—an existential battle between various
actors for unquestioned primacy in the production and control of international legal
discourse; (2) macro—CWII as being about the way in which a universalist legal order can
effectively withstand pluralist security challenges.
D. Conclusions: International Lawyers in the Ukraine Crisis and/or CWII

176
As I have written elsewhere, and as should be clear from this article, the Ukraine crisis
may be symptomatic of a new Cold War—with its attendant global, domestic, and
177
institutional/academic politics.
I have been observing the Ukraine crisis closely, and have written several essays that
suggest avenues for research that try to capture particular doctrinal nuances—drawing
from primarily Anglophone and Russian legal sources. Yet I have also watched in dismay as
the intensifying domestic debate over the Ukraine crisis has seen the eruption of bellicose
rhetoric from some quarters. This includes outright ad hominem attacks purporting to
impugn the allegiances of individuals deemed, in Brad Roth’s phrase, “apologists for
178
Russia” or, worse yet, “apologists for Putin.” In Russia, the vilifying rhetoric has even
made use of the term “fifth columnists,” with its terrifying evocation of treasonous
collaboration with the enemy. Mindful of the uneasy Cold War history of McCarthyism in
the U.S. and silencing of dissent in the U.S.S.R. and post-Soviet states—I have watched with
alarm how the dispassionate analysts on both sides who have urged for reason,
compromise, and rigorous analysis have been attacked as dovish, naïve, or worse, as
179
intellectual saboteurs secretly working against the interests of “their state.” The lesson
175
CHINA MIÉVILLE, BETWEEN EQUAL RIGHTS: A MARXIST THEORY OF INTERNATIONAL LAW (2005) (“Between equal rights,
force prevails.”).
176
Mamlyuk, supra note 138.
177
As a scholar focused on Russian approaches to international law and global governance, I have done research
in Moscow’s Institute of State and Law under the auspices of the U.S. Fulbright program, and my work generally
tries to understand Soviet and Russian legal theory against broader historical and economic currents. I have been
following developments in the post-Soviet space since my days in law school and travel to the region to conduct
research, gather materials, and meet with scholars in effort to understand the social and legal contours of the
respective societies.
178
Isaac Chotiner, Meet Vladimir Putin’s American Apologist, NEW REPUBLIC (Mar. 2, 2014),
http://www.newrepublic.com/article/116820/vladimir-putin-defended-american-leftist.
179
Steve Gutterman, Russian Professor Under Pressure over Nazi Comparison on Ukraine, MOSCOW TIMES (Mar. 4,
2014), available at http://www.reuters.com/article/2014/03/04/us-ukraine-crisis-russia-professor-
idUSBREA231SX20140304; Stephen F. Cohen, Cold War Book Reviewing?, N.Y. TIMES (June 4, 1995),
http://www.nytimes.com/1995/06/04/books/l-cold-war-book-reviewing-087505.html (describing how U.S. Cold
of one of the leading American comparativists and path blazing scholars of Soviet law—
John N. Hazard (1909–1995), a lifelong Columbia Law School professor who had earlier
180
served his country in WWII as a Soviet-law expert, but who was later investigated—and
cleared—by the House Un-American Activities Committee and was subsequently denied
entry visas to the Soviet Union—serves as a sobering reminder that Cold War politics are
181
ruthless politics.
Given that my scholarly focus inevitably touches on various critical or heterodox schools of
legal thought—as any study of Soviet or post-Soviet law would—I am in a double bind,
given the potential for blowback, mischaracterization, and impugned ill-motive inherent in
what are, in fact, utterly conventional American legal realist suggestions that strictly
positivist accounts fail to capture the actual driving forces of legal change. My decision to
enter this conversation is driven by the academic ethos of intellectual honesty and a search
for truth, a value of no national—let alone solely Ukrainian, Russian or American—
provenance. Moreover, the fact that I see such a disclaimer as necessary is itself testament
to the chilling effect this polarized political discourse has had, and may yet have, on
scholarship. The specific normative/political commitment that animates these pages is a
desire to further our understanding of global governance in institutional spaces that permit
and encourage these types of inquiries, rather than stifling them with unprincipled
assertions of national partisanship. My hope is that readers take it upon themselves to
engage with the ideas presented here without essentializing the round pegs of the
suggested avenues for research into the narrow square holes of nationalist politics.
As this Article proceeds to print, the Ukraine crisis shows no signs of abetting internally or
in terms of the broader global restructuring along the lines suggested above—increasing
use of disinformation, lawfare, realignment in global trade law, and even law and
development architecture. The United States and European Union have taken punitive
measures against Russia through three formal channels: (1) Unilateral and multilateral
182
military aid commitments to Ukraine; (2) targeted financial sanctions against individuals
183
and firms connected to Russia’s ruling elite; and (3) broader sectoral sanctions and other
War-era academic and journalistic communities “imputed bad and even un-American thinking to scholars who
dared rethink prevailing explanations of Soviet history”); Robert Ivie, Cold War Dissent Revisited, 17 RHETORIC &
PUB. AFF. 163 (2014).
180
JOHN N. HAZARD, RECOLLECTIONS OF A PIONEERING SOVIETOLOGIST (2d ed. 1987).
181
Boris N. Mamlyuk & Ugo Mattei, Comparative International Law, 36 BROOK. J. INT’L L. 385, 408 (2011).
182
On May 1, 2014, Senator Bob Corker (R-TN) introduced the 2014 Russian Aggression Prevention Act, which
would authorize, inter alia, up to $100 million in direct military aid for Ukraine. See supra note 168. Since then,
the U.S. and other NATO states have announced various other military aid commitments to Ukraine.
183
U.S. Department of the Treasury: Resource Center, Ukraine-Related Sanctions, available at
http://www.treasury.gov/resource-center/sanctions/programs/pages/ukraine.aspx
unarticulated countermeasures in response to the incipient trade war between the United
184
States and Russia. Russia has responded in kind, with broad import bans on foodstuffs
and other categories of goods from the United States and European Union. There is little
indication that a political solution to the conflict is forthcoming.
For internationalists or comparativists whose work does not center on the region, this
crisis is significant for several additional reasons. It serves as a vivid contemporary case
study on indeterminacy, showing the fluid nature of international and domestic legal
argument, especially in relation to similar challenges elsewhere—such as humanitarian aid
for Yazidis in Iraq versus humanitarian aid for Gaza versus humanitarian aid for Donetsk,
and so forth. Second, the crisis highlights the failures of our best current collective security
mechanisms and emphasizes the need for an urgent reexamination of collective security
objectives and institutions. Third, the magnitude of the potential crisis opens the door for a
consideration of heterodox empirical and theoretical accounts of law and war, bracketed in
the broader context of global relations of production and power. An understanding of
natural gas “politics”—the maze of contracts that assures the delivery of Russian gas to
European markets—may explain the situation in Ukraine and EU-US-Russian relations far
better than orthodox narratives of “illiberal” Russia struggling in a “liberal” world.
Lastly, this article has tried to suggest several alternative avenues of research pursuant to
which we can uncover how legal formalism—or a particular style of international legal
positivism—may conceal the actual driving forces of a complex conflict like the one in
Ukraine. Mindful of the rapidly evolving nature of the conflict, this article closes on the
same questions that started it. Explicitly highlighting, then bracketing out, the uncertainty
surrounding concrete empirical claims, how is the Ukraine crisis transforming two of
international law’s deepest anxieties: (1) The (in)effectiveness of positivist international
law as a discursive trope when discussing ‘great power’ relations; and (2) the insistence on
pronouncements of international legality when conducting foreign affairs in light of the
relative ineffectiveness of international legal institutions to mediate those affairs?
184
For instance, on August 7, 2014, Russia placed a one-year embargo on food imports from the United States,
European Union, Australia, Canada and Norway. Roberto Ferdman, Russia’s Ban on American Food Imports Is
Going to Hit the U.S. Poultry, Pork and Nut Industries the Hardest, WASH. POST (Aug. 7, 2014),
http://www.washingtonpost.com/blogs/wonkblog/wp/2014/08/07/russias-ban-on-american-food-imports-is-
going-to-hit-the-u-s-poultry-pork-and-nut-industries-the-hardest/.
Sovereignty and Crimea: How Referendum Democracy

Complicates Constituent Power in Multinational Societies
By Stephen Tierney*
Abstract
This article examines the specific issue of the referendum as an instrument in the re-
ordering of territory, specifically in the context of the secession of Crimea from Ukraine.
The article maps how in recent decades independence referendums have prolifera ted and
considers how the Crimean situation exposes the deep pathology of uncertainty in
international law and its understanding of self-deter mination, exposing the referendum as
a dangerous outlier. The principle of democracy, present already in the contex t of Kosovo’s
unilateral independence, and which forced the hand of Canada and the UK to
accommodate secessionist aspirations, is a growing feature of international legal
discourse, and one which suggests that the referendum is likely to remain a potential
trump card to which nationalists will appeal to overcome both constitutional impediments
and the black hole of international law in the path toward statehood.
A. Introduction
On 16 March 2014, a referendum was held in Crimea on its future status as a territory. This
event was deeply controversial because it was organi zed against the backdrop of Russian
intervention and the Ukrainian Government, which had no involvement in the process
1
challenging its legality. This article observes that the focal -point for the territorial
reorganization which many ethnic Russians sought to achieve—as it has been in so many
places over the past twenty five years —was an exercise in direct democracy. The Crimean
process is the latest example of a trend in which the referendum has become the default
device for sub-state nationalist movements wishing to appeal to their own host state
and/or to the international community in pursuit of a sovereignty claim. It is frequently
observed that the legal principles of territorial integrity and self-determination have been
2
in flux since 1990 when the USSR and SFRY started to unravel. What is less often discussed
*
University of Edinburgh.
1
Mark Weller, Analysis: Why Russia's Crimea Move Fails Legal Test, BBC NEWS (Mar. 7, 2014),
http://www.bbc.co.uk/news/world-europe-26481423 (last visited June 18, 2015).
2
Zoran Oklopcic, Which Pluralism? External Self-determination at the Intersection of National, Social and
Geopolitical Emancipation, in NATIONALISM AND GLOBALISATION (Stephen Tierney ed., forthcoming 2015).
is the crucial legitimating function performed by direct democracy in these proces ses, a
tendency which has continued in subsequent situations where a change of status has been
3
at stake, including Eritrea, East Timor, Montenegro and South Sudan.
This article examines the specific issue of the referendum as an instrument in the re-
ordering of territory. It begins by briefly mapping how, in recent decades, the referendum
has proliferated, and how territorial and sovereignty issues have been at the heart of this
proliferation (Part B). The article then considers how the Crimean situation exposes the
deep pathology of uncer tainty in this area, with doctrines such as self-determination and
territorial integrity variously overlapping and conflicting with other areas of international
law including human rights, the prohibition of the use of force, and the principle of
democracy. Together this helps create a situation ripe for political manipulation (Part C).
One issue which emerges in the Crimean debate—as it did in relation to the Kosovo crisis
of 1998-99 and the subsequent move by states to r ecognize Kosovo as a State—is the
relationship between legality and legitimacy. In Part D, this article considers how the
referendum has assumed such importance on account of its purported capacity to fill the
legitimacy gap. In this context, one must ask: what is it about the referendum as a specific
type of electoral event that is so unsettling for international law? This leads to the final
section which addresses other recent claims which have the r efer endum as a focal point, in
particular the 1995 referendum in Quebec and the recent independence referendum in
Scotland, each of which in effect are territorial claims directed internally to the host state
4
as interlocutor rather than ex ternally to the international community. These processes
required the host state to reflect upon—and in turn justify—the democratic principles
which underpin its own constitutional order. When ther e is, however, deep dissensus
within the state, and claims fall back on international law, the situation in the Crimea
shows an unclear and unsettled international regime, into which the referendum emerges
as a dangerous, but potent, outlier. The principle of democracy, however, which forced the
hand of the host state in Canada and the UK is a growing feature of international legal
discourse, and one which suggests that the referendum is likely to remain a potential
trump card to which nationalists will appeal to overcome both constitutional impediments
and the black hole of international law in the path to statehood. It is also clear that the
moral force of the referendum—even when the context within, and process by, which it is
it organized are both deeply suspect—can provide an unstoppable momentum towards
secession in the face of the collapsing normative authority of international l aw.
3
See generally MATT QVORTRUP, REFERENDUMS AND ETHNIC CONFLICT (2014).
4
STEPHEN TIERNEY, CONSTITUTIONAL L AW AND NATIONAL PLURALISM 293–99 (2004); STEPHEN TIERNEY, DIRECT DEMOCRACY IN
THE UNITED K INGDOM: REFLECTIONS FROM THE SCOTTISH INDEPENDENCE REFERENDUM (forthcoming Public Law, 2015).
2015 Sovereignty and Crimea 525
B. The Proliferation of Constitutional Referendums: the Territorial Dimension
Over the past four decades the referendum has become a fixed feature of state and
constitution-building across the globe. In Table 1, I offer a breakdown of how the use of
5
referendums has grown in four main areas of constitutional practice.
Table 1
4 TYPES OF REFERENDUM EXAMPLES
IN THE “ NEW WAVE”
Founding of new states  New states emerging from the former

USSR and SFRY (1990-1992)
 Eritrea (1993), East Timor (1999),
Montenegro (2006), South Sudan (2011)
Creation and amendment  Former republics of the USSR and SFRY

of new constitutions  Iraq – ratification of the Constitution (2005)
 Egypt – constitutional reforms (2011)
Sub-state autonomy  Spain referendums: e.g. Basque Country

(1979), Catalonia (1979), Galicia (1980)
 United Kingdom referendums: Scotland
(1997), Wales (1997) and (2011), Northern
Ireland (1998)
European Union: treaty-
making processes in  Malta; Slovenia; Hungary; Lithuania;
respect of both Slovakia; Poland; Czech Republic; Estonia;
integration and accession Latvia (2004)
 Croatia (2012)
The aspirations of sub-state peoples for constitutional change have been key to the
proliferation of the referendum. It has been central to the founding of new States, and —as
the referendum held in Scotland in September 2014 and the ongoing efforts by Catalan
nationalists to hold a referendum on sovereignty each demonstrate—the referendum is
5
For further discussion see STEPHEN TIERNEY, CONSTITUTIONAL REFERENDUMS: THE THEORY AND P RACTICE OF REPUBLICAN
DELIBERATION (2012).
now an automatic procedural move for nationalists seeking to present claims to

independent statehood today. Referendums wer e once rarely used in the creation or
amendment of constitutions, but throughout Central and Eastern Europe and more
recently in Iraq and Egypt, the refer endum has emerged both in the founding of new
constitutions and within the text of these constitutions as part of future amendment
procedures. This can also be traced to the sub-state process because many of those sub-
state peoples in Central and Eastern Europe who achieved statehood by way of a
referendum either had a subsequent referendum to ratify the new constitution and/or
included the r efer endum in the new constitution as central to futur e processes of
6
constitutional amendment. The referendums on accession to treaty development of the
EU do not raise sub-state issues, but they do offer evidence of this general turn towards
popular democracy: of the first fifteen member states, only Denmark and Ireland turned to
7 8
the referendum in the accession process; of the ten joining in 2004, only Cyprus did not.
It is often assumed that the r efer endum is of use to sub-state groups simply as a device
9
with which to break-up of multinational states. But referendums are also central —as a
sub-set of the second group in Table 1—in establishing complex new models of sub-state
10
autonomy as we have seen in Spain and the UK in the late 1970s and 1990s respectively,
and in ongoing processes of constitutional change such as the referendum on further
11
devolution for Wales in 2011 . A related example is the referendum on the draft
Charlottetown Accord in 1992 in which Quebec and the rest of Canada respectively held
12
distinct referendum processes. In other words, the referendum is also central to those
forms of territorial reorganization which stop short of statehood. Sub-state peoples can
see the referendum as a mechanism by which their demotic specificity is recognized within
the state; secession is not the only route to recognition, but it is a popular goal and will
remain so particularly when aspirations towards greater autonomy remain frustrated.
6
STEPHEN TIERNEY, THE REFERENDUM IN MULTI-LEVEL STATES: FRACTURING OR FOSTERING FEDERAL MODELS OF GOVERNMENT?
The Federal Idea (2014).
7
TIERNEY, supra note 5, at 305–12 (2012).
8
Id. at 6.
9
QVORTRUP , supra note 3, at 48.
10
TIERNEY, supra note 4, at 152, 285, 299–301.
11
See generally R. WYN JONES & R. SCULLY, WALES SAYS YES: WELSH DEVOLUTION AND THE 2011 WELSH REFERENDUM (2012).
12
TIERNEY, supra note 4, at 141.
C. Referendum in Crimea: The Crisis in Legality
The Crimean situation demonstrates just how confused, contested, and messy the state of
international law is when territorial claims to independent statehood or irredentism arise.
It is often noted that international law, although giving no right to secession except
13
possibly in the most extreme cases of internal oppression, is in a sense neutral on the
14
issue. This by definition creates a grey area. If international law is neutral, what steps can
lawfully be taken either to affect or to resist secession? To add to the conceptual difficulty,
attempts to secede rarely play out in practice as self-contained processes. Instead, they
invariably raise ancillary legal issues. The Crimean case demonstrates how territorial
questions are made more complex by the way the issue of self-determination interacts
(often in fraught situations of armed conflict) not only with territorial integrity and the
question of state dissolution, but also with other values and legal principles such as
prohibition of the use of force, claims to democracy, “humanitarian” intervention, and the
possible forfeit of a state’s entitlement to territorial integrity in light of flagrant human
rights abuses. These different factors often interact in contradictory ways, and are
15
variously prayed in aid for, or used to strengthen denials of, territorial claims.
An example of the vagueness of the law of secession is the obscure opinion given by the ICJ
16
in the Kosovo Advisory Opinion. This opinion drew a distinction between the entitlement
to declare independence on the one hand and the right to effect it on the other hand. The
Court concluded that international law does not generally prohibit unilateral declarations
of independenc e because the principle of territorial integrity only applies in the relations
17
between States and not in regard to internal secess ionist movements. It does not take a
great leap of imagination to see how this fine distinction drawn by the Court could serve
only to further confuse what was already a highly complex and contested issue. Indeed, it
can reasonably be argued that the ICJ opinion—by suggesting that agitating for
independence to the point of declaring such a status —is not unlawful under international
law, seems to offer a green light to secessionist movements.
However, this position is qualified. One area of focus for the Court, which it does take to be
important to the contex t in which declarations are made, is the use of force. The Court
goes on to say that unilateral declarations of independence can violate international law
13
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, para. 112 (Can.) [hereinafter Re Secession].
14
Advisory Opinion, 2010 I.C.J. 403, 438, para. 84 (July 22) [hereinafter Advisory Opinion].
15
Anne Peters, Does “The West” Now Pay the Price for Kosovo, EJIL: TALK! BLOG (Apr. 22, 2014).
16
Advisory Opinion, supra note 14, at 423, 438, para. 84.
17
Id. at 423, 425, paras. 51, 56.
where they “wer e, or would have been, connected with the unlawful use of force or other
egregious violations of norms of general international law, in particular those of a
18
peremptory character (jus cogens).” At a theoretical level, this is not an unreasonable
distinction. In the highly fraught environment of disputed territorial claims, however,
where secession attempts and the use of force—the legality of which is itself often deeply
contested—are so often intertwined, it should be no surprise that this aspect of the
Opinion has resulted in differing interpretations by different actors.
Certainly Crimean Russians were keen to seize upon the ICJ’s statement on declarations of
independence as affirmation of their right to move towards independence. On 11 March
2014, the Supreme Council of Crimea (Crimea’s Parliament) proclaimed that it was acting:
[w]ith regard to the charter of the United Nations and a

whole range of other international documents and taking
into consideration the confirmation of the status of
Kosovo by the United Nations International Court of
Justice on July 22, 2010, which says that unilateral
declaration of independence by a part of the country
doesn’t violate any international norms.19
On the other hand i t has been forcefully argued that Crimea’s declaration of independence
is illegal because it relied upon an illegal use of force. At the time of the referendum,
Russian soldiers occupied the territory. As Marksen argues:
In regard to Crimea, the declaration of independence

would have been impossible without Russian troops
backing up the steps towards secession. Only the fact that
Ukrainian forces on Crimea have been locked in their
posts and that the public infrastructure has been taken
over by pro-Russian forces made it possible to hold the
referendum on which the declaration of independence is
based. It can therefore hardly be argued that the
declaration would not rely on the use of force. According
to the criteria elaborated in the ICJ’s advisory opinion, if
that use of force was illegal, so was the declaration of
independence.20
18
Id. at 438, para. 8.
19
Christian Marksen, Crimea’s Declaration of Independence, EJIL: TALK! BLOG (Mar. 18, 2014).
20
Id.
Similarly, Milanovic draws a clear line between Cri mea and Kosovo, with the use of force
the critical point of distinction:
Crimea’s secession is the direct result of Russia’s unlawful

military intervention against Ukraine, whereas Kosovo’s
secession was not tainted to the same extent by NATO’s
1999 intervention due to the subsequent adoption of
Resolution 1244, which authorized the presence of
international forces in Kosovo while disabling Serbia from
taking military action to suppress Kosovo’s secession.21
But even the use of force delimitation on secession can be a difficult issue to assess in
practice. In a debate about territory and sovereignty, opinions about who is actually using
force unlawfully can shift rapidly depending upon conditions on the ground. If there is an
armed insurrection in pursuit of secession, even one supported ex ternally by another
state, at what point do counter-measures taken by the host state themselves violate the
prohibition on the use of force or international human rights norms? Also, when — if
ever—does the reaction of the host state entitle an external power or powers to intervene,
claiming humanitarian conditions as a pretext?
All of these questions inevitably drew the 1998–1999 international intervention in

Kosovo—and Kosovo’s subsequent move to independent statehood—into the Crimean
debate. In Kosovo, the self-deter mination issue was not only murky due to its link to the
22
path dependency of the Badinter process, but also precisely because of this question of
“humanitarian intervention.” The author has argued elsewhere that it was the denial of a
21
Marko Milanovic, Crimea, Kosovo, Hobgoblins and Hypocrisy, EJIL: TALK ! BLOG (Mar. 20, 2014). See also Peters,
supra note 15. She distinguishes Kosovo from the Crimean situation. Id. She argues that the use of
force/intervention in Kosovo are legally separate from Kosovo's secession while the use of force in Crimea is
central to the process leading to its secession. She goes on to reject the argument that the West’s conduct over
Kosovo weakens criticisms of Russian action in Ukraine/Crimea. Id.
22
Five states emerged from the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY). On 27 April 1992
two of the six republics of the SFRY—Serbia and Montenegro—formed the Federal Republic of Yugoslavia which
was considered by the EC Peace Conference Arbitration Commission to be a new state. Conference on Yugoslavia
Arbitration Commission (the Badinter Commission), Opinions on Questions Arising from the Dissolution of
Yugoslavia, (1992) Opinion No. 9. The FRY was recognized by member states of the European Community
following the Dayton Agreement of 14 December 1995. The other four republics became independent states:
Bosnia-Herzegovina, Croatia, Macedonia and Slovenia. In due course Montenegro would itself become
independent following a referendum in 2006.
Kosovo was not eligible to apply to the Badinter Commission for recognition; and for Kosovars, conscious of the
autonomy they had enjoyed under the 1974 Constitution, which in their eyes accorded Kosovo de facto
republican status, and bearing in mind that Kosovo with a population which was approximately ninety percent
ethnic Albanian was the most ethnically homogeneous autonomous unit in the Federal Republic apart from
Slovenia, it seemed particularly unjust that Kosovo should be excluded from any possibility of statehood simply on
account of a formal distinction in the 1974 SFRY constitution between republics and autonomous provinces.
territorial solution to the Kosovo crisis which played possibly a determinative role in
sparking the intervention by Western powers with a “self-determination intervention”
motivation in addition to—and perhaps even more than—a “humanitarian intervention”
23
dynamic. In any event, the culmination of the UN intervention has been a slow but
inexorable road to Kosovo's statehood.
Kosovo’s acquisition of statehood is the first case in which a territory of the for mer SFRY or
USSR which was not a republic under the former constitution of either state has achieved
24
widespread recognition as a state. It did not fit criteria for recognition laid down by the
major international powers in the wake of the “dissolution” of the state, as adjudicated by
25
Badinter. Inevitably, this has led to a discussion of the ex tent to which Kosovo acts as a
precedent for the Crimean situation. In recognizing Kosovo as an independent state, a
number of states argued that Kosovo was an exceptional case due to the history of conflict
there, the human rights abuses which sparked the intervention that preceded its move to
statehood, and even its relationship to the collapse of the SFRY. It is not surprising,
however, that others are not willing to accept that the violation of Serbia’s territorial
integrity against its will contains no implications for any other situation. This has led other
sub-state nationalists, including those in Crimea, to consider the opposition of the host
state not an insurmountable barrier—in legal as well as practical terms —to statehood and
to recognition. It is not convincing to compare how Kosovars wer e treated by the FRY in
1998 with how Crimean Russians were tr eated by Ukraine in the run up to the referendum
in Crimea. For example, the Office of the United Nations High Commissioner for Human
26
Rights rejected Russian claims that there wer e widespread a nd systematic human rights
violations of Ukrainians with Russian ethnicity, which justified both the Russian
intervention and claims of a right to secede. The fact is , however, that the Kosovo
intervention and the Kosovo opinion of the ICJ serve to muddy what were already pretty
murky waters. As Marksen argues:
23
Stephen Tierney, The Long Intervention in Kosovo: A Self-Determination Imperative?, in KOSOVO AND
INTERNATIONAL L AW 249–78 (James Summers ed., 2011).
24
For example, on 18 February 2008 the EU presidency announced that member states were free to decide
individually whether to recognize Kosovo's independence; most have done so.
25
For Kosovars, conscious of the autonomy they had enjoyed under the 1974 Constitution, which in their eyes
accorded Kosovo de facto republican status, and bearing in mind that Kosovo with a population which was
approximately ninety percent ethnic Albanian was the most ethnically homogeneous autonomous unit in the
Federal Republic apart from Slovenia, it seemed particularly unjust that Kosovo should be excluded from any
possibility of statehood simply on account of a formal distinction in the 1974 SFRY constitution between republics
and autonomous provinces.
26
Report on the Human Rights Situation in Ukraine, Office of the United Nations High Commissioner for Human
Rights of 15 April 2014.
Since Russia is powerful enough to pursue its interests

anyway, it does not need an ultimately convincing legal
justification. A justification that is at least not totally
absurd, but somehow arguable, is already good enough
for making a case in the international political sphere. In
expanding the right to self-determination in regard to
Kosovo, Western states bear their share of responsibility
in enabling such arguments and in undermining
international law.27
Since 1945, the law of self-determination has always been open to political manipulation
given its importance, its close connection to principles of political legitimacy, and the area
of uncertainty introduced by the UN General Assembly in relation to exceptional cases of
28
internal oppression. Generally, however, it was accepted that any legal right to sec ession
which came with the right to self-determination, applied only to colonized territories and
was therefore consigned to history with the virtual completion of European decolonization.
The Kosovo recognition has breathed life into a dying horse and in doing so has given
clever lawyers an opening to argue that, on the basis of the law’s obscurity and
malleability, one case is pretty much as strong as another. In this area of the law,
therefore, it is not necessarily the strength of one’s arguments that matter, but the
opportunity to present a case—which would previously have been seen as entirely
implausible—as being at least arguable: “[W]e may be wrong but there is no certainty that
you are right.” As Milanovic argues, “Even if Kosovo and Crimea are legally distinguishable,
they are still close enough. The West’s position on Crimea is undeniably undermined by
29
their previous stance regarding Kosovo, and they can only blame themselves for that.”
It seems that the ICJ’s opinion has done more harm than good, not only in the casuistic
distinction between a declaration of independence and an entitlement to independenc e,
but also on account of what it did not say. It did not deal with the real issues that Serbia
sought to put to it: Whether Kosovo had a right to secession, whether ther e is such a
generalizable right under international law, or what the legal consequences of the Kosovo
30
declaration might be. What we are left with therefore are new gaps in an already
fragmented legal regime, new ambiguities, and, most regrettably, new opportunities for
opportunists to use these to bolster their political goals.
27
Marksen, supra note 19.
28
UN General Assembly Declaration 2625 which in a general commitment to the territorial integrity and political
unity of sovereign and independent states hints that a state’s entitlement to territorial integrity might be
weakened if the state is not conducting itself, “in compliance with the principle of equal rights and self-
determination of peoples,” and specifically where it is not, “possessed of a government representing the whole
people belonging to the territory without distinction as to race, creed or color.”
29
Milanovic, supra note 21.
30
Advisory Opinion, supra note 14, at 403, 423, 425, paras. 51, 56.
D. Legality and Legitimacy: The Referendum Fills the Gap?
International law does not make itself less vulnerable to intractability and
incommensurability when the boundaries between legality and legitimacy are themselves
obscured. In other words, not only is the law obscure, it is not even the only game in town.
With the Kosovo crisis, we saw legality seep into the related but entirely open-ended
notion of legitimacy which was presented as a feasible alternative to legality in justification
for international action which would otherwise itself be unlawful . We see this set out
starkly in relation to the “humanitarian” intervention which was described by one
31
significant report as “illegal but legitimate.”
Peters argues that one of the key distinctions between the Kosovo and Crimean cases is
that that the use of force and the international intervention in Kosovo are legally separate
32
from Kosovo's secession whereas in Ukraine and Crimea the two acts are inseparable. But
she also concedes that if it is the case that either or both the Kosovo intervention or the
Kosovo secession was illegal, and the justification for either is instead “legitimacy,” the
Western powers have “a problem of credibility”:
Actors who breached the law in a previous case sound

hypocritical when they point their finger to another
actor’s violations of the law. This is not only a matter of
politics, but raises the legal problem of double standards.
Applying double standards is extremely pernicious for the
rule of law and fairness. One of the core elements of the
rule of law is the principle that like cases must be treated
alike. However, the principle of equal treatment cannot
apply in the realm of unlawful behaviour, because this
31
THE INDEPENDENT INTERNATIONAL COMMISSION ON KOSOVO, THE KOSOVO REPORT: CONFLICT, INTERNATIONAL RESPONSE,
L ESSONS L EARNED 4 (2000). This position was also taken by a UK House of Commons Foreign Affairs Committee
Report—HC Foreign Affairs Committee Fourth Report, para. 138 (May 23, 2000). For related arguments, see also,
Nico Schrijver, NATO in Kosovo: Humanitarian Intervention turns into Von Clausewitz War, 1 INT’L L. F. 155–59
(1999). Antonio Cassese, Ex Iniuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible
Humanitarian Countermeasures in the World Community?, 10 EUR. J. INT’L L. 23–30 (1999); Abraham Sofaer,
International Law and Kosovo, 36 STAN. J. INT’L L. 4 (2000). See also Nico Schrijver, NATO in Kosovo: Humanitarian
Intervention Turns into Von Clausewitz War, 1 INT’L L. FORUM 155–59 (1999); Abraham Sofaer, International Law
and Kosovo, 4 STAN. J. INT’L. L. 36 (2000). Or other opinions that consider the NATO bombing of FRY to have been
unlawful but which are otherwise sympathetic to NATO’s motivations . See Bruno Simma, NATO, the UN and the
Use of Force: Legal Aspects, 10 EUR. J. INT’L. L. 1–22 (1999); Michael J. Glennon, The New Interventionism: The
Search for a Just International Law, 78 FOREIGN AFFS. 2 (1999).
32
Peters, supra note 15.
would condemn the supervising actors to perpetuate

unlawfulness.33
Peters defends the Kosovo intervention as exceptionally justified “on account of blatant
human rights violations, political marginalization, persistent denial of internal self -
34
determination of Kosovar Albanians, and as the only way out of a stalemate.”
Her arguments are not unconvincing; she is also surely correct that opening up the
distinction between legality and legitimacy changes the debate and offers aid to those who
would present the Crimean case in a similar light. When legitimacy is introduced as a factor
that can differ from—but nonetheless rival —legality as a justification for action, it should
be no surprise that we find the salience of the referendum as a player in these dis putes
increasing. The referendum intervenes by instantiating a dramatic constituent moment,
encapsulating the democratic voice of a people speaking directly and collectively; in other
words, it offers one moment of apparent democratic clarity to pierce an opaque legal and
political backdrop.
There are two features specific to state-forming and constitution-framing processes

which—from the perspective of civic republicanism—seem to offer a strong prima facie
defense of the deployment of direct democracy that have made the referendum so
attractive to sub-state nationalists seeking to advance the constitutional position of their
35
own national societies. The first is that it serves to highlight the importance of the issue
at stake—the people come together collectively to express their will on a major issue, at a
foundational or re-foundational moment for their polity. This is a highly symbolic process
which presents to the people’s host state and/or the international community a specific
claim which has the ultimate democratic validation—the expressed will of the people—
unmediated by politicians. This argument builds upon work within the republican revival by
scholars like Bruce Acker man who argue that constitutional politics is distinct from
36
ordinary politics, making a compelling case for citizen engagement. Secondly, in such
decisions, the very identity of the people or the demos is inevitably implicated. This is
because they involve constitutive constitutional issues, the most fundamental of which is
the aspiration for a new state or an irredentist move to join an existing state. A
33
Id.
34
Id. But this also serves to invite questions about the motivations of the powers intervening in the Kosovo crisis.
Among those skeptical of the idea that NATO and others were motivated by humanitarian concerns were: NOAM
CHOMSKY, A NEW GENERATION DRAWS THE L INE: KOSOVO, EAST TIMOR AND THE STANDARDS OF THE WESt (2001); Robert M.
Hayden, Humanitarian Hypocrisy, 8 E. EUR. CONST. REV. 91–96 (1999); CHRISTINE GRAY, INTERNATIONAL L AW AND THE USE
OF FORCE 36 (2000).
35
Stephen Tierney, Constitutional Referendums: A Theoretical Enquiry, MOD . L. REV. 360–83 (2009).
36
BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 10 (1991).
referendum not only has instrumental value in presenting a claim based upon the r esult of
the vote, but, in bringing the people together in one direct constitutional moment, it can
also help to make real the idea of a national people made manifest in the moment of
collective decision-taking. In other words, a constitutional referendum takes on a symbolic
representational role, encapsulating the very political selfhood of the people, while also
37
embodying its settled will. In turn, individuals can come reflexively to identify with one
another through their shared participation in this process. In the fraught and hazy area of
statehood claims, the practical force and totemic resonance of constitutional referendums
combine into a forceful claim to legitimacy.
The notion of legitimacy in direct democracy, however, needs to be questioned further.

Where does this stem from? It is not simply that the referendum is an exercise in
democracy. The term democracy is itself vague and contested, for example between those
who take respectively liberal or republican approaches, and those who fa vor direct as
38
opposed to representative forms. What is more, it has come to be validated more usually
through representative than direct channels. What is particularly legitimizing about the
referendum is that it is as much about the “self” as it is about the “determination” aspect
of self-determination. The crucial feature of a referendum is not the decision on a
particular set of constitutional aspirations, but the nature of the decision-makers. As an
event, the refer endum serves to mobilize a sub-state group as a people; the aspiration for
self-determination and the act of self-determination merge into one another. In a
sovereignty referendum, a sub-state people are not just claiming a right to self-
39
determination, they are also actively self-determining in the here and now. Further, this
has the capacity to develop the identities of the citizens in the process. Not only are they
the authors of a new political regime, but as such they can also undergo through this event
a process of self-authorship, redefining themselves collectively as citizens of the new
polity.
Having said all of this, however, let us not overlook that there was a whole range of
process problems attached to the Crimean referendum, undermining not only claims of
legality, but also those of legitimacy. In the first place, the refer endum was organized
against the will of the Ukrainian government. The question that was put to voters and the
timing of the vote are also serious concerns. The referendum asked the people of Crimea
whether they wanted to join Russia as a federal subject, or if they wanted to r estore the
1992 Crimean constitution and Crimea's status as a part of Ukraine: the status quo was not
37
See generally MICHEL ROSENFELD , THE IDENTITY OF THE CONSTITUTIONAL SUBJECT: SELFHOOD , CITIZENSHIP, CULTURE AND
COMMUNITY (2010).
38
TIERNEY, supra note 5, at 19–57.
39
Stephen Tierney, We the Peoples: Balancing Constituent Power and Constitutionalism in Plurinational States, in
THE P ARADOX OF CONSTITUTIONALISM 229–46 (Martin Loughlin & Neil Walker eds., 2007).
40
an option. Also, the final date for the referendum and the ballot choices were set only
41
ten days before the plebiscite was held. Again, the turnout and result are deeply
contested. The organizing authorities released their own data, but this is dismissed as
42
fabricated by the Ukrainian government. Notably, the legality of the referendum was
rejected by the United Nations. Thirteen members of the United Nations Security Council
voted in favor of a resolution declaring the referendum invalid, but Russia vetoed it and
43
China abstained. The resolution would have reaffirmed Ukraine's “sovereignty,
independence, unity and territorial integrity” and declared that the referendum “can have
44
no validity.” A vote of one hundr ed in favor and eleven against, with fifty-eight
abstentions, adopted a United Nations General Assembly resolution later, which declared
45
the referendum invalid and affirmed Ukraine's territorial integrity.
But despite these factors, it is significant that it is upon the referendum that the Crimean
claim to unification with Russia principally rests. Other arguments are presented. Ther e is
the claim that in historical terms the people of Crimea have a strong connection with
Russia. The Crimean Oblast was a subdivision of the Russian Soviet Federative Socialist
46
Republic until the 1954 transfer of Crimea into the Ukrainian SSR. When Ukraine became
independent after the dissolution of the USSR, Crimea became part of the new
independent state, a process which itself followed a referendum in 1991, the legitimacy
47
and legality of which was itself questioned by the collapsing Soviet state at the time.
There are also arguments that since then the autonomy of Crimea within Ukraine has been
diminished.
40
Richard Balmforth, No Room for 'Nyet' in Ukraine's Crimea Vote to Join Russia, REUTERS, Mar. 11, 2014,
http://www.reuters.com/article/2014/03/11/us -ukraine-crisis-referendum-idUSBREA2A1GR20140311 (last
41
Crimean Parliament Votes to Join Russia, Sets Referendum Date, NBC NEWS, Mar. 6, 2014,
http://www.nbcnews.com/storyline/ukraine-crisis/crimean-parliament-votes-join-russia-sets-referendum-date-
n45686 (last visited June 18, 2015).
42
Sam Frizell, Crimea Votes to Leave Ukraine for Russia, TIME MAGAZINE, Mar. 16, 2014. See also Ian Birrell,
Crimea's Referendum Was a Sham Display of Democracy, THE GUARDIAN, Mar. 17, 2014 (last visited June 18, 2015).
43
UN Security Council Action on Crimea Referendum Blocked, UN NEWS CENTRE, Mar. 15, 2014,
http://www.un.org/apps/news/story.asp?NewsID=47362#.VQRJXnk8Zjo (last visited June 18, 2015).
44
Id.
45
Backing Ukraine’s Territorial Integrity, UN Assembly Declares Crimea Referendum Invalid, UN NEWS CENTRE, Mar.
27, 2014, http://www.un.org/apps/news/story.asp?NewsID=47443#.VQRKTHk8Zjo (last visited June 18, 2015).
46
MARC WELLER & STEFAN WOOLF, AUTONOMY, SELF-GOVERNANCE AND CONFLICT RESOLUTION: INNOVATIVE APPROACHES TO
INSTITUTIONAL DESIGN IN DIVIDED SOCIETIES 71 (2005).
47
TIERNEY, supra, note 5, at 68–70.
These do not amount to arguments that justify secession, and certainly not the
interference in Ukrainian affairs by Russia, but when the issue of political right is
contested, the referendum can take on moral force, and can serve to unsettle
constitutional systems and their self-understanding of the normative underpinni ngs of the
state. When we look by analogy to other constitutional systems wher e sovereignty
referendums have been a feature of political struggle, we see that the principle of
democracy emerges as a potential trump card which can bring to the constitutional table a
prima facie entitlement to sec ession which challenges both established interpretations of
the constitution, and even the supremacy of the constitution itself.
We see this for example in the Quebec Secession Reference. Here, following Quebec’s
unsuccessful referendum on sovereignty in 1995, the federal government, formally the
Governor in Council, asked the Court three questions:
(1) Under the Constitution of Canada, can the National

Assembly, legislature, or government of Quebec effect the
secession of Quebec from Canada unilaterally?
(2) Does international law give the National Assembly,
legislature, or government of Quebec the right to effect the
secession of Quebec from Canada unilaterally? In this
regard, is there a right to self-determination under
international law that would give the National Assembly,
legislature, or government of Quebec the right to effect the
secession of Quebec from Canada unilaterally?
(3) In the event of a conflict between domestic and
international law on the ri ght of the National Assembly,
legislature, or government of Quebec to effect the
secession of Quebec from Canada unilaterally, which would
take precedence in Canada?48
The Court took the view that international law on secession did not apply to the situati on
of Quebec because international law “does not specifically grant component parts of
49
sovereign states the legal right to secede unilaterally from their ‘parent’ state.” This
rendered the third question redundant. The Cour t therefor e focused upon the first
question. In the end, this led to a subtle and complex opinion by the Cour t which has
indirectly helped to articulate the role which a referendum on sec ession can play in
instigating the process of constitutional amendment in Canada and on the limitatio ns of
the formal amendment process itself.
48
Re Secession supra note 13, at Preamble.
49
Id. at para. 111.
The way in which the Court envisaged the referendum interacting with the constitutional
amendment process is intriguing. The first step the Court takes is to suggest that in the
event of an unambiguous vote for secession, Quebec’s partners in Confederation would
have an obligation “to acknowledge and respect that expression of democratic will by
entering into negotiations and conducting them in accordance with the underlying
50
constitutional principles already discussed.” In other words, it is not simply the case that
Quebec would request negotiations toward a constitutional amendment and the other
provinces could simply refuse to negotiate. Instead, it seems that the negotiations must
respect the will of the majority of Quebecers to secede. This does not mean that secession
is a fait accompli, flowing simply from a Yes vote on secession. As the Court stated, “No
negotiations could be effective if their ultimate outcome, secession, is cast as an absolute
legal entitlement based upon an obligation to give effect to that act of secession in the
51
Constitution.” In contract, it could not accept that “a clear expression of self-
determination by the people of Quebec would impose no obligations upon the other
provinces or the federal government.” The Canadian constitutional order “cannot remain
indifferent to the clear expression of a clear majority of Quebecers that they no longer
wish to remain in Canada.” Doing so
[w]ould amount to the assertion that other

constitutionally recognized principles necessarily trump
the clearly expressed democratic will of the people
of Quebec. Such a proposition fails to give sufficient
weight to the underlying constitutional principles that
must inform the amendment process, including the
principles of democracy and federalism. The rights of
other provinces and the federal government cannot deny
the right of the government of Quebec to pursue
secession, should a clear majority of the people of Quebec
choose that goal, so long as in doing so, Quebec respects
the rights of others. Negotiations would be necessary to
address the interests of the federal government, of
Quebec and the other provinces, and other participants,
as well as the rights of all Canadians both within and
outside Quebec.52
This Opinion does not expressly state that Quebec has the right to secede from Canada,
but this is a plausible implication of what it does say. To effect secession, Quebec, or any
other province, must negoti ate and conclude the process by way of a constitutional
50
Id. at para. 88.
51
Id. at para. 91.
52
Id. at para. 92 (emphasis added).
amendment, but it is a right to secede nonetheless. Quebec’s partners in confederation

53
seem to have a legal duty to negotiate in good faith toward this outcome.
There is nothing stated in the text of the Constitution Act 1982, which tells the federal
government or the provinces that they have such a legal duty. Instead, this right emerges
from the articulation of it by the Court. To make this move, the Court looks beyond the
text of the written constitution, giving considerable importance to “unwritten” or
54
underlying principles “animating the whole of the Constitution.” In the Court’s view,
there are four “fundamental and organizing principles of the Constitution” which are
relevant to addressing the question of secession: “federalism; democracy;
55
constitutionalism and the rule of law; and respect for minorities.” The Court explains,
“These defining principles function in symbiosis. No single principle can be defined in
isolation from the others, nor does any one principle trump or exclude the operation of
56
any other.” Also, “[t]hese principles inform and sustain the constitutional text: they are
57
the vital unstated assumptions upon which the tex t is based.” In normative terms, these
58
principles are ascribed considerable significance. They are of interpretive value, as they
are in many constitutions, but beyond this, the Court had earlier found that these
59
principles could be used to fill gaps “in the express terms of the constitutional text.” It is
in this context that the Court makes its most startling move, declaring that these principles
“are not mer ely descriptive, but are also invested with a powerful normative force, and are
60
binding upon both courts and governments.” It is with this status in mind that we must
understand the court’s view that these principles must in turn “inform our overall
appreciation of the constitutional rights and obligations that would come into play in the
61
event that a clear majority of Quebec ers votes on a clear question in favor of secession.”
The obligation to negotiate stems from the unwritten principles of the constitution which
both fill the gaps in the constitution’s text and have the power to bind governments.
53
In that regard, I agree with the argument offered in Zoran Oklopcic’s article in this collection. Zoran Oklopcic
The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights and Constitutional
Paradoxes, 16 GERMAN L.J. 658, 681 (2015).
54
Re Secession, supra note 13, at Preamble.
55
Id. at para. 32.
56
Id. at para. 49.
57
Id. at para. 49.
58
Id. at para. 52.
59
Provincial Judges Reference [1997] 3 S.C.R. 3, para. 104 (Can.) (noting that the preamble to the constitution
“invites the courts to turn those principles into the premises of a constitutional argument that culminates in the
filling of gaps in the express terms of the constitutional text”) (cited by Re Secession, supra note 13, at para. 53).
60
Re Secession, supra note 13, at para. 54.
61
Id. at para. 2.
It seems that it is the particular symbolic resonance of the refer endum as a democratic
event that is crucial to a move which takes abstract constitutional principles, imbibes them
with legally binding force, and transubstantiates them into a concrete duty to negotiate
towards the secession of part of the state. It is pertinent that the duty to negotiate exists
because the “Canadian constitutional order cannot remain indifferent to the clear
expression of a clear majority of Quebec ers that they no longer wish to remain in Canada.”
It seems unlikely that the Court would come to this conclusion based upon, for example, a
declaration by the National Assembly of Quebec of an intention on the part of the province
to secede. It is the moral force of direct democracy, of the constituent power of citizens
speaking directly, which has produced this result. While the Court insists that none of the
four principles trumps the others, it is the principle of democracy which is used to force the
hand of the other provinces. This does not entirely usurp the established pathways of
constitutional amendment, but it seems to have set a substantive expectation of an
outcome which in effect would require the use of the amendment process to give effect to
the clearly expressed popular will of Quebecers if the other conditions it sets —absence of
ambiguity “in terms of the question asked and in terms of the support it achieves”—are
62
met.
Another recent situation is in Scotland where a referendum was held on independenc e,

with the consent of the state. In January 2012, when the Scottish Government announced
its intention to hold a referendum, the UK Government responded by arguing that the
Scottish Parliament had no legal authority to do so, and it appeared for a time that this
issue would end up before the United Kingdom Supreme Court. In such a scenario the UK
Court would have faced some of the same issues as those confronted by the Supr eme
63
Court of Canada in 1998. But the UK Government conceded the political principle that a
referendum could be held. On 15 October 2012, a deal was reached between the two
64
governments in what became known as the Edinburgh Agreement. This provided that the
UK Parliament would formally devolve to the Scottish Parliament the competence to
legislate for a referendum on independence, provided that this was held before the end of
62
David Haljan disagrees, arguing that the duty to negotiate in good faith is simply a duty to be open -minded
about the demand for secession: “A proposal for change is just that: a suggestion.” DAVID HALJAN,
CONSTITUTIONALISING SECESSION 341 (2014). This is an unconvincing account which is successfully refuted by Oklopcic.
See Zoran Oklopcic, The Anxieties of Consent: Theorizing Secession Between Constitutionalism and Self-
determination, INT’L J. GRP . & MINORITY RTS. (forthcoming 2015).
63
Gavin Anderson et al, The Independence Referendum, Legality and the Contested Constitution: Widening the
Debate, UK CONSTITUTIONAL L AW ASSOCIATION BLOG (Jan. 31, 2012),
http://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-
the-contested-constitution-widening-the-debate/ (last visited June 18, 2015).
64
Agreement between the United Kingdom Government and the Scottish Government on a Referendum on
Independence for Scotland, (Oct. 15, 2012),
http://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence (last visited June 18,
2015).
65
2014. This is another example of a state becoming aware that when a sub-state national
group mobilizes with the aim of asserting its own constituent power , it is very hard to
resist the political right of a people, long r ecognized as being a discrete people, to ex ercise
its latent constituent power.
In the eyes of international law, while events surrounding referendums may raise legal
problems, it is intuitively difficult to view a referendum itself as an illegal act. It has to be
said that the United Nations certainly did take this view in relation to Crimea as we have
seen in the overwhelming view of the United Nations Security Council and the Resolution
of the General Assembly, declaring the refer endum invalid and affirming Ukraine's
66
territorial integrity. Similarly, on 27 March 2014, the EU issued a statement to the UNGA
67
to the effect that it did not recognize Russia’s absorption of Crimea.
For others, however, it is not so si mple. Jure Vidmar argues both that a “shift of territorial
sovereignty” for Crimea would be illegal and that “even the declaration of independence
68
violated international law.” He also takes the view, however, that the referendum in itself
69
was not illegal. He argues that—as a result of the illegalities he speaks of—there is an
obligation to withhold recognition to any purported change in status and this is of course
70
the established position of the vast majority of states including the EU. But it is notable
that he sees the referendum itself as a legal act. If this is the case, or even if a plausible
case can be presented to this effect, it brings into play the constituent power issue which
the Supr eme Court of Canada and the UK Government r ecognized to be irrepressible in the
71
cases of Quebec and Scotland. When such an electoral event takes place, mobilizing a
sub-state people to vote in huge numbers for independence or for some form of territorial
reorganization, the result can become, in legitimacy-based terms at least, a fait acco mpli.
This was the story of the Soviet Union’s own collapse, as referendums were held in
65
Scotland Act 1998 (Modification of Schedule 5) Order 2013, para. 3,
http://www.legislation.gov.uk/uksi/2013/242/made (last visited June 18, 2015).
66
G.A. Res. 68/262 (Mar. 27, 2014).
67
EU Statement—United Nations General Assembly: Territorial Integrity of Ukraine, http://eu-
un.europa.eu/articles/en/article_14799_en.htm.
68
See also Jure Vidmar, The Annexation of Crimea and the Boundaries of the Will of the People, 16 GERMAN L.J.
365, 367–68, 383 (2015).
69
Jure Vidmar, Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo , EJIL:
TALK ! BLOG (Mar. 20, 2014).
70
Declaration by the High Representative on Behalf of the EU on Crimea (Mar. 16, 2015)
http://www.consilium.europa.eu/en/press/press-releases/2015/03/16-declaration-high-representative-crimea/.
71
The UK has also recognized that Northern Ireland can secede from the UK to join the Republic of Ireland if a
majority vote for this in a referendum: Northern Ireland Act 1998, s.1.
republics which were themselves of questionable legality but which by displaying massive
72
support for independence built the political momentum to dismember the state.
E. Conclusion
This is not to say that international law should be called upon in an attempt to legitimize
what is clearly an illegal act according to the constitution of Ukraine. It is simply to
recognize that direct democracy is a political move which sub-state actors increasingly
make on account of its power to force the hand of states to shift their approach to the
constitutionality of secession. International law a nd international actors have played their
part in giving moral force to the refer endum. Badinter Commission Opinion No. 4 is the
73
clearest example of this. The international community allowed the deeply flawed
referendum in Bosnia in 1992 to play a determi ning role in the recognition of Bosnia when
it was barely viable as a State. The dissolution of SFRY has left the international law
position on the recognition of States deeply unsettled, but one emerging trend is how
influential the refer endum can be, both in achieving statehood and in providing the moral
force which would lead to the recognition of this statehood.
International law, which was always of little assistance in the resolution of territorial
issues, has become even more confusing and contested in light of Kosovo’s move to
statehood and the opaque Opinion of the ICJ in response to Serbia’s perfectly legitimate
questions about part of its territory seceding with the tacit support and recognition of UN
Member States. This also comes at a time when the right to democracy is also an
74
increasing feature of international law.
The Kosovo crisis has also led to the introduction of legitimacy as an actor which now exists
alongside legality as the metric of appropriate behavior. Given that the referendum was
applied as a legitimizing device in the recognition of new states in Central and Eastern
Europe, it should be no surprise that the referendum has risen to such prominence in the
settlement of territorial disputes.
72
TIERNEY, supra note 5.
73
Following a request by Bosnia-Herzegovina for recognition, the Badinter Commission found that the absence of
a referendum meant that “the will of the peoples of Bosnia -Herzegovina to constitute [a republic] as a sovereign
and independence State cannot be held to have been fully established.” Badinter Commission, Opinion No. 4 .
74
Steven Wheatley, Modelling Democratic Secession in International Law, in NATIONALISM AND GLOBALISATION
(Stephen Tierney ed., 2015) (forthcoming).
The Eternal Territory? The Crimean Crisis and Ukraine’s

Territorial Integrity as an Unamendable Constitutional Principle
By Yaniv Roznai* & Silvia Suteu**
Abstract
This article reflects on the protection of territorial integrity in the Ukrainian constitution,
especially on its provision of unamendability, against the backdrop of the 2014 Crimean
crisis. At the general level, we examine whether constitutional theory can offer answers
when confronted with the apparent inefficacy of a constitutional claim to eternity. More
specifically, we focus on what the Ukrainian case can teach us about the implications of
designating territorial integrity or indivisibility of a state as an eternal/unamendable
constitutional principle. Building on insights from the Crimean crisis, we argue that the
unamendable protection of territorial integrity is an especially ineffective type of eternity
clause because it is subject to both the internal threat of secession and the external risk of
forceful annexation. The preservative promise of unamendable territorial integrity is
severely curtailed by this double vulnerability, even when backed by a constitutional court
with far-reaching powers of judicial review. Territorial integrity as an eternal constitutional
principle then remains merely aspirational. Moreover, we argue that the act of entrenching
territorial protection as an unamendable principle is in clear tension with the idea of
popular sovereignty and with mechanisms for expressing popular will.
East-Central European constitutions play like songs of

the liturgy on a very old gramophone. You hear the
expected music performed in the service of
constitutionalism, but you hear it with a crackle in the
background. The performance is old-fashioned in order
*
Post-Doctoral Fellow, Hauser Global Law School, New York University (NYU); Research Director, Faculty of Law
and Geography Department, Minerva Center for the Rule of Law Under Extreme Conditions, University of Haifa.
**
Ph.D. Candidate, School of Law, University of Edinburgh; Associate Director for Research Engagement,
Edinburgh Centre for Constitutional Law.
The authors wish to thank Sujit Choudhry, Samuel Issacharoff, Michel Rosenfeld, Andreas Kalyvas, Richard Albert,
Gábor Halmai, William Partlett, Jan Kudrna, Ida Koivisto, Dominik Steiger, Bartosz Marciniak, Mykola Gnatovsky,
Eoin Daly, and especially Zoran Oklopcic for useful comments and assistance during the preparation of this article.
We also extend our gratitude to the student editors of the German Law Journal who worked on this article: Aria
Allan, Alyson Cox, Vincent Smith, Jocelyn Jezierny, Chi Ewusi, Andrea Marshall, Lizzy Williams, and Jessica Winn.
2015 The Eternal Territory? 543
to receive the nulla obstat of the Council of Europe and

sometimes (when territorial integrity comes up) the
1
soprano’s voice suffers from hysteria.
A. Introduction
Ukraine’s 2014 crisis began as anti-governmental protests that led to the removal of
Ukraine’s former president, Viktor Yanukovich in February 2014, after which pro-Russian
militias in Crimea took control of strategic facilities and of Crimea’s administrative borders
with the rest of Ukraine. On 1 March 2014, the Russian State Duma approved a request by
President Vladimir Putin to engage Russian forces in Ukraine in order to protect Russian
lives. Later, Russian and pro-Russian forces gradually took over Ukrainian military sites and
2
the main official institutions in Crimea. On 6 March 2014, the Supreme Council of the
Autonomous Republic of Crimea adopted a resolution, “On the All-Crimean Referendum,”
3
on the basis of Articles 18(1)(7) and 26(2)(3) of the Crimean Constitution. This resolution
was meant to provide the legal basis for a referendum on independence, to be held on 16
4
March 2014, but was promptly contested by Ukrainian and international voices. On 11
March 2014, Crimea’s parliament approved a resolution on the independence of Crimea
and “if a decision to become part of Russia [was] made at the referendum of the 16 March
2014.” The resolution declared Crimea as an independent, sovereign state and requested
the Russian Federation to accept the Republic of Crimea as a new constituent entity of the
5
Russian Federation with a status of a republic.
1
András Sajó, Reforming Prince Potemkin, 2 E. EUR. CONST. REV. 126, 126 (1993).
2
See Ben Smith & Daniel Harari, Ukraine, Crimea and Russia, HOUSE OF COMMONS LIBRARY 1–6 (Mar. 17, 2014),
http://www.parliament.uk/business/publications/research/briefing-papers/RP14-16/ukraine-crimea-and-russia;
Ivanna Bilych, Alexander Gudko, Kateryna Kuntsevich, Matheus Sena, Malvika Seth & Olena Sharvan, The Crisis in
Ukraine: Its Legal Dimensions, RAZOM 34–35 (2014),
https://s3.amazonaws.com/razominc/The_Crisis_In_Ukraine_-_Its_Legal_Dimensions.pdf.
3
Article 18(1)(7) provides that the Autonomous Republic may “call and hold republican (local) referendums upon
matters coming under the terms of reference of the Autonomous Republic of Crimea.” THE CONSTITUTION OF THE
AUTONOMOUS REPUBLIC OF CRIMEA Oct. 21, 1998, art. 18(1)(7). Crimean Constitution Article 26(2)(3) provides that the
Supreme Council may “pass a resolution upon holding a republican (local) referendum.” Id. art. 26(2)(3).
4
See Anne Peters, Sense and Nonsense of Territorial Referendums in Ukraine, and Why the 16 March Referendum
in Crimea Does Not Justify Crimea’s Alteration of Territorial Status under International Law, EJIL: TALK!, Apr. 16
2014, http://www.ejiltalk.org/sense-and-nonsense-of-territorial-referendums-in-ukraine-and-why-the-16-march-
referendum-in-crimea-does-not-justify-crimeas-alteration-of-territorial-status-under-international-law/ (last
5
See Resolution ‘On the Independence of Crimea,’ RT (Mar. 17, 2014, 15:09), http://rt.com/news/crimea-
resolution-independence-ukraine-346/ (last visited June 16, 2015).
6
The Ukrainian government did not recognize the referendum and declared it illegal. On 14
March 2014, the Ukrainian Constitutional Court found the Crimean referendum to be
unconstitutional and ordered the Crimean authorities to immediately cease all
7
preparations for it. On 20 March 2014, the same Court declared the resolution of the
8
parliament of Crimea “on the declaration of independence” to be unconstitutional. On 15
March 2014, the Council of Europe’s Venice Commission for Democracy through Law
(Venice Commission) opined that the referendum would be unconstitutional and
9
illegitimate. A draft United Nations Security Council resolution urging states not to
recognize the results of the referendum failed to pass on 15 March 2014 following Russia’s
10
veto and China’s abstention. On 27 March 2014, the United Nations General Assembly
adopted Resolution 68/262 in which it emphasized “that the referendum held in the
Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having no
validity, cannot form the basis for any alteration of the status of the Autonomous Republic
11
of Crimea or of the city of Sevastopol.”
Notwithstanding these condemnations, on 16 March 2014, Crimea’s local authorities held

a referendum on whether Crimea should secede from Ukraine to join the Russian
Federation. A day later, it was announced that 97 percent of the population had voted to
join Russia. Consequently, the Russian President Vladimir Putin signed a decree recognizing
Crimea as an independent state and singed agreements with Crimea’s leadership declaring
Crimea and the city of Sevastopol part of the Russian Federation. Subsequently, the
Russian Parliament adopted a law accepting the new regions as parts of the Russian
6
On 7 March 2014, acting President Turchynov signed a decree suspending the Crimean Parliament’s Order of 6
March 2014 to hold a referendum on territorial integrity and the Crimean Parliament’s resolution authorizing the
16 March referendum as violating the Ukrainian Constitution and laws. On 11 March 2014, the Ukrainian
Parliament issued a statement demanding that the Crimean Parliament immediately revise its resolution to
comply with the national law. Moreover, Ukraine’s Minister of Justice, Ombudsman and Chair of the Council of
Judges, have all publicly condemned the referendum as unconstitutional. See Bilych et al., supra note 2, at 21.
7
See Dec. of the Const. Ct. of Ukraine, No. 02-rp/2014 (Mar. 14, 2014).
8
Dec. of the Const. Ct. of Ukraine, No. 03-rp/2014 (Mar. 20, 2014).
9
See Venice Comm’n for Democracy Through Law, Opinion on “Whether the Decision Taken by the Supreme
Council of the Autonomous Republic of Crimea in Ukraine to Organize a Referendum on Becoming a Constituent
Territory of the Russian Federation or Restoring Crimea’s 1992 Constitution is Compatible with Constitutional
Principles,” COUNCIL OF EUR. (Mar. 21, 2014),
http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)002-e.
10
See UN Security Council Action on Crimea Referendum Blocked, UN NEWS CENTRE (Mar. 15, 2014),
http://www.un.org/apps/news/story.asp?NewsID=47362#.VQHFPOFOghQ (last visited June 16, 2015).
11
G.A. Res. 68/262, para. 5, U.N. Doc. A/RES/68/262 (Mar. 27, 2014).
12
Federation. By March 2015, even President Putin was ready to admit that the plan “to
13
bring Crimea back into Russia” had been orchestrated weeks before the referendum.
The 2014 conflict surrounding the status of Crimea not only reflects a contentious political
14
issue in Ukraine, in Russia and in between the two countries, but also raises imperative
questions from the perspective of constitutional theory. Of those, one will be the particular
focus of this contribution: the tension between the unamendable commitment to
territorial integrity in Ukraine’s constitution and the reality of the country’s territorial
fragmentation following the 2014 Crimean crisis. We are thus interested in the protection
of territory, as inscribed in the eternity clause of Ukraine’s constitution, as an instantiation
of the question raised by Zoran Oklopcic in his contribution to this volume: “[W]hat
happens to the authority of . . . a constitutional order when a fluid and malleable identity
15
fractures and disappears, and when competing political identities crystalize, instead?”
This article reflects on the protection of territorial integrity in the Ukrainian constitution,
and especially within its provision of unamendability, against the backdrop of the 2014
Crimean crisis. At the general level, we examine if constitutional theory can offer answers
when confronted with the apparent inefficacy of a constitutional claim to eternity. More
specifically, we focus on what the Ukrainian case can teach us about the implications of
designating territorial integrity or indivisibility as an eternal/unamendable constitutional
12
See HUMAN RIGHTS WATCH, RIGHTS IN RETREAT: ABUSES IN CRIMEA 35 (2014). The historic and ethnic relationship
shared by Russia and Crimea could explain the interest and the will of the government in Moscow to act on behalf
of the Russian community in the Crimea, and conversely a sympathy within Crimea towards Russia. See, e.g.,
Philip Chase, Conflict in the Crimea: An Examination of Ethnic Conflict Under the Contemporary Model of
Sovereignty, 34 COLUM. J. TRANSNAT’L L. 219, 227–29, 243 (1996); Roman Solchanyk, Crimea: Between Ukraine and
Russia, in CRIMEA: DYNAMICS, CHALLENGES AND PROSPECTS 3, 4 (Maria Drohobycky ed., 1995). For a study on the
trust-building between the Crimean population and Russia and the promotion of pro-Russian separatism in
Crimea, see Lada L. Roslycky, Russia’s Smart Power in Crimea: Sowing the Seeds of Trust, 11 SOUTHEAST EUR. &
BLACK SEA STUDS. 299 (2011).
13
Putin Reveals Secrets of Russia's Crimea Takeover Plot, BBC NEWS (Mar. 9, 2015),
http://www.bbc.co.uk/news/world-europe-31796226 (last visited June 16, 2015).
14
See generally Chase, supra note 12; Natalie Mychajlyszyn, The OSCE in Crimea, 9 HELSINKI MONITOR 30, 36–37
(1998); Doris Wydra, The Crimea Conundrum: The Tug of War Between Russia and Ukraine on the Questions of
Autonomy and Self-Determination, 10 INT’L J. MINORITY & GROUP RTS. 111 (2003); David R. Marples & David F. Duke,
Ukraine, Russia, and the Question of Crimea, 23 NATIONALITIES PAPERS: J. NATIONALISM & ETHNICITY 261 (1995).
Interestingly, it has been argued that the primary source of instability in Crimea lies with Ukrainian political and
commercial interests and not with ethnic claims or geopolitics. See Tetyana Malyarenko & David J. Galbreath,
Crimea: Competing Self-Determination Movements and the Politics at the Centre, 65 EUROPE-ASIA STUDS. 912
(2013).
15
See Zoran Oklopcic, The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial
Rights and Constitutional Paradoxes, 16 GERMAN L.J. 658, 659 (2015).
16
principle. Building on insights from the Crimean crisis, we argue that the unamendable
protection of territorial integrity is an especially ineffective type of eternity clause because
it is subject to both the internal threat of secession and the external risk of forceful
annexation. The preservative promise of unamendable territorial integrity is severely
curtailed by this double vulnerability, even when backed by a constitutional court with far-
reaching powers of judicial review. Territorial integrity as an eternal constitutional
principle then remains merely aspirational. Moreover, we contend that the act of
entrenching territorial protection as an unamendable principle is in clear tension with the
idea of popular sovereignty and with mechanisms for expressing popular will. This tension
provides further evidence to support Stephen Tierney’s insight that the principle of
17
democracy is deeply unsettling for constitutional law. The uncertainty surrounding
territorial change in constitutional law and theory, we conclude, is not alleviated by
unamendable protections of territorial integrity.
The article proceeds by an examination of the constitutional protection of territorial

integrity in Ukraine’s constitutional architecture in Section B. We do so in several steps.
First, we explore Ukraine’s general constitutional arrangements of territorial organization
and Crimea’s place within those. Second, we focus on the unamendability protection of the
territorial integrity within the Ukrainian constitution. Third, we study the concurrent
adoption of constitutional review of proposed constitutional amendments in Ukraine and
its relevance to the protection of unamendability. In Section C we outline the functions of
unamendable constitutional provisions and further analyze the unamendability of
territorial integrity in a comparative perspective. Section D builds on insights from the
previous sections in order to draw out major lessons from the Crimean crisis, regarding the
tension between popular sovereignty and commitments to unamendability of the
territorial integrity, as well as the limited effectiveness and risks of unamendability in the
area of territorial integrity.
16
In this paper, we use the term unamendability to describe the limitation on the constitutional amendment
power from amending certain principles or institutions. Provisions which explicitly protect constitutional subjects
from amendments are often termed “eternity clauses.” For a note on this terminology and its normative
implication, see Yaniv Roznai, Unamendability and the Genetic Code of the Constitution, EUR. REV. PUB. L.
(forthcoming 2015). Also, we use the terms “territorial indivisibility” and “territorial integrity” interchangeably.
Nevertheless, it can be argued that there is a distinction between territorial indivisibility and territorial integrity.
The former emphasizes the negation of secession whereas the latter carries a dual aspect: Internal—which
opposes secession—and external—which emphasizes protection against foreign aggression or forcible
encroachment of the territory. See Venice Comm’n for Democracy Through Law, Self-Determination and Secession
in Constitutional Law, COUNCIL OF EUR. (Jan. 12, 2000),
http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-INF(2000)002-e.
17
See generally, Stephen Tierney, Sovereignty and Crimea: How Referendum Democracy Complicates Constituent
Power in Multinational Societies, 16 GERMAN L.J. 523 (2015).
B. Ukraine and the Unamendability of Territorial Integrity
I. Territorial Arrangements in the Ukrainian Constitution
Constitutional commentators tend to ignore the territorial question surrounding the

(re-)emergence of a state, instead tending to grapple with the question of who is “we, the
18
people.” Thus, it is perhaps surprising to note that a complex definitional attempt was
not made at the time of Ukraine’s independence, which some scholars have termed an
“overwhelming indifference to the so-called ‘national question,’” that is, who and on what
19
terms constituted the “nation.” Others have pointed to the Ukrainian leaders’ rejection
of notions of “Ukraine for Ukrainians” and their adherence instead to a project of
“statehood for all of its peoples” at that time; this in turn is said to have resulted in an
20
overwhelming vote in favor of independence. What resulted in the early days of
independence was thus “a pluralist, civic approach to the conception of a political
community,” and ethnos was shunned in favor of “a political-territorial conception of
21
nationhood.”
Once the constitution-making process got under way in the mid-nineties, however, the
question on the nature of the political community displayed its true contested colors.
Pitted against each other were the political right in Ukraine, with its emphasis on the
“Ukrainian people” as the distinctive and titular majority, and the political left, which spoke
22
of the “people of Ukraine” in an attempt to define it in territorial terms. According to the
former, national minorities were accepted and protected as “state-forming communities,”
23
but the new civic nation was to be built around the core, Ukrainian ethnos. Conversely,
the Left wanted a supra-ethnic definition of the people, wherein multi-ethnicity could be
24
asserted and preserved.
Without a centrist alternative and needing to reach a compromise, the Right’s position was
enshrined in the Ukrainian constitution, notably in its preamble and provisions on state
18
An exception here is Zoran Oklopcic, Provincializing Constitutional Pluralism, 5 TRANSNAT’L LEGAL THEORY 331–63
(2014).
19
KATARYNA WOLCZUK, THE MOULDING OF UKRAINE: THE CONSTITUTIONAL POLITICS OF STATE FORMATION 88 (2002).
20
See Roman Solchanyk, The Politics of State Building: Centre-Periphery Relations in Post-Soviet Ukraine, 46
EUROPE-ASIA STUDS. 47, 65 (1994).
21
WOLCZUK, supra note 19, at 90.
22
Id. at 167–232.
23
Id. at 171.
24
Id.
25
language and symbols. For this reason, some have listed Ukraine among those
post-communist countries having enshrined “a dubious and contested definition of
26
nationhood” in their constitution. More importantly, this brief foray into the debates
surrounding constitution-drafting in Ukraine highlights the disputed nature of the political
community in whose name the constitutional text was to be enacted. Such clashes
27
between “competing and mutually exclusive models of statehood” serve to further
illustrate the incursions between state and constitution-making which Oklopcic and Arato
28
both discuss in this volume. As we note below, the constitutional arrangements
29
surrounding Crimea’s status further strengthened this notion of a civic state, to the
30
exclusion of competing—and not insignificant—visions.
The territorial question relates not just to the enforcement of external boundaries which
statehood requires, but also to the internal administrative map reflecting or holding
together the polity. This internal structure is occasionally also shrouded in unamendability,
whether of the unitary state, such as in Romania, or of the federal structure, such as in
31
Germany and Brazil. While Ukraine’s provision of unamendability speaks of “territorial
32
indivisibility” without further specifications, Article 2 of the constitution defines Ukraine
as a unitary state and refers to its territory “within its present borders” as indivisible and
inviolable. A short excursion into Ukraine’s territorial arrangements, and the special status
afforded Crimea, will, however, reveal the borders to have been less clear-cut.
25
Id. Although the preamble speaks of “the Ukrainian people—citizens of Ukraine of all nationalities,” thus
seemingly striking a compromise between the two positions, other provisions in the constitution, for example
Article 11, refer to the centrality of the Ukrainian nation to the state and the latter’s duty to support its
consolidation and development. See WOLCZUK, supra note 19, at 228.
26
Irina Culic, State Building and Constitution Writing in Central and Eastern Europe After 1989, 1 REGIO –
MINORITIES, POL., SOC’Y 56 (2003).
27
WOLCZUK, supra note 19, at 180.
28
See Oklopcic, supra note 15. See generally, Andrew Arato, International Role in State-Making in Ukraine: The
Promise of a Two-Stage Constituent Process 16 GERMAN L.J. 691 (2015); Culic, supra note 26, at 57 (speaking of
state-building in post-communist states as “vigorous nation building” associated to a “remedial and assertive
nationalism”).
29
See WOLCZUK, supra note 19, at 95.
30
On the process of narrative construction of national identity in Ukraine, see Karina V. Korostelina, Mapping
National Identity Narratives in Ukraine, 41 NATIONALITIES PAPERS: J. NATIONALISM & ETHNICITY 293 (2013).
31
For comparative studies on unamendability, see MARIE-FRANCOISE RIGAUX, LA THÉORIE DES LIMITES LATÉRIELLES À
L’EXERCICE DE LA FONCTION CONSTITUANTE (1985); Sharon Weintal, Eternal Clauses in the Constitution (2005)
(unpublished Ph.D. thesis, Hebrew University of Jerusalem) (on file with authors); Yaniv Roznai, Unconstitutional
Constitutional Amendments: A Study of the Nature and Limits of Constitutional Amendment Powers (2014)
(unpublished D.Phil. thesis, London School of Economics and Political Science) (on file with authors); Richard
Albert, Constitutional Handcuffs, 42 ARIZ. ST. L. J. 663 (2010).
32
See infra Section B.II.
Territorial integrity, as a central feature within Ukrainian constitutionalism, already

appeared in the 1990 Declaration of the State Sovereignty of Ukraine alongside other
33
important principles such as national state sovereignty and self-determination. The Act of
Ukraine’s Independence Declaration of August 1991 expressly states that “the territory of
34
Ukraine is integral and inviolable.” The principle continued to be a central feature during
the constitution-making process. The draft constitution of 27 May 1993 embodied the
“fundamental political accommodation made to Crimea over the spring and summer of
35
1992 to curb the threat of Crimean secession.” In the draft constitution as amended on
26 October 1993, the first chapter entitled “Fundamentals of Constitutional Order” was
modified to “General Provisions” and extended by the addition of various articles.
Ukraine’s sovereignty was added in Article 2, and its second part was complemented with
36
the statement on the integrity and inviolability of the territory of the state. Territorial
integrity is considered such an important public interest that it is also recognized in the
constitution—alongside national security and public order—as a legitimate interest which
37
justifies the limitation of fundamental rights, such as freedom of thought and speech.
Chapter IX of the Ukrainian constitution of 1996 specifies the state’s territorial structure.
According to Article 132 “the territorial structure of Ukraine is based on the principles of
unity and integrity of state territory [and] combination of centralization and
38
decentralization in the exercise of state power.” According to Article 133, “the system of
the administrative and territorial structure of Ukraine is composed of the Autonomous
39
Republic of Crimea, oblasts, districts, cities, city districts, settlements and villages.”
Ukraine’s choice of a unitary territorial model was not inevitable. Indeed, as one author
put it, “[a]t first sight, Ukraine is custom-made for far-reaching regionalization or even
40
federalism.” The same author describes the eventual choice for a unitary state as
33
See DECLARATION OF STATE SOVEREIGNTY (Ukr. 1990).
34
PAUL R. MAGOCSI, A HISTORY OF UKRAINE: THE LAND AND ITS PEOPLES 723 (2010) (citing DECLARATION OF INDEPENDENCE
(Ukr. 1991)).
35
Keenan H. Hohol, The Draft Constitution of Ukraine: An Overview, 1 REV. CONST. STUD. 246, 276 (1993–1994).
36
See V. Shapoval, History of Constitutional Organization of Modern Ukrainian State, 2011 L. UKR. LEGAL J. 385, 410
(2011).
37
See UKRAYNSKA KONSTITUZIYA June 28, 1996, ch. II, art. 34 (Ukr.); Richard C.O. Rezie, The Ukrainian Constitution:
Interpretation of the Citizens’ Rights Provisions, 31 CASE W. RES. J. INT’L L. 169, 190–92 (1999).
38
UKRAYNSKA KONSTITUZIYA, June 28, 1996, ch. IX, art. 132 (Ukr.).
39
On local governments in Ukraine, see S. Seriogina, Constitutional-Legal Regulation of Local Self-Government in
Ukraine and Directions for Its Improvement, 2012 L. UKR. LEGAL J. 65.
40
Kataryna Wolczuk, Catching up with ‘Europe’? Constitutional Debates on the Territorial-Administrative Model in
Independent Ukraine, 12 REGIONAL & FED. STUDS. 65 (2002).
stemming from a desire to “return to Europe,” but in the early days of independence,
Ukraine’s political elites wavered between centralization and federalism. The latter was
promoted by its supporters as a solution to regional economic needs, as a means to bolster
41
the democratic credentials of the new state, and as an answer to multi-ethnicity. The
federal idea was lost during constitutional drafting for several reasons. Strategically, its
42
supporters appear to have failed to put forth an alliance to promote it. More
fundamentally, however, it was seen as a destabilizing force—in the former federal Soviet
43
Union, resulting in dissolution; In Russia, given the bloody experience with separatist
forces and in Ukraine, on account of federalism’s potential to perpetuate, mobilize and
44
legitimate centrifugal forces in the country. As Oleh Protsyk describes it, “the
unwillingness to decentralize also was informed by expectations that such a policy would
intensify destructive centrifugal tendencies in a polity that was only recently established
45
and whose regional differences were strong and well-articulated.” Federalism thus
46
became taboo for the political establishment. In the end, a unitary territory was
perceived to be more likely to lead to an integrated society and to subordinate sub-state
47
interests to those of the center. Within this unitary framework, decentralization and the
regulation of self-government were also left underdeveloped, not so much “for a fear of
rigidity and over-regulation, but rather the lack of a coherent conception of the territorial
48
distribution of power and centre-periphery relations.”
The striking exception to all this is Crimea, which enjoys—as the only region where the
majority of the population belongs to an ethnic minority—a special status with significant
49
independence, albeit remaining a constituent part of Ukraine. The historical background
41
42
See id. at 152.
43
This is also reflected in the fact that of all former Soviet states, only Russia has a federal structure today.
Interestingly, in a first attempt of constitutionalism initiated by the Tsar in an effort to maintain order and
authority, the Russian Fundamental Laws of 1906 declared, “[T]he Russian state is one and indivisible.” William
Partlett & Eric Ip, The Death of Socialist Law? (2015) (unpublished paper) (on file with authors).
44
See WOLCZUK, supra note 19, at 153–54; see also Gwendolyn Sasse, The ‘New’ Ukraine: A State of Regions, 11
REGIONAL & FED. STUDS. 69, 82 (2001).
45
Oleh Protsyk, Majority-Minority Relations in the Ukraine, J. ETHNOPOLITICS & MINORITY ISSUES EUR. 1, 8 (2008),
http://www.ecmi.de/fileadmin/downloads/publications/JEMIE/2008/issue%201/1-2008-Protsyk.pdf.
46
See Sasse, supra note 44, at 81; GWENDOLYN SASSE, THE CRIMEA QUESTION: IDENTITY, TRANSITION, AND CONFLICT 25–26
(2007); see also Bohdan A. Futey, Ukraine’s Draft Constitution Meets Political Reality, 2 E. EUR. CONST. REV. 15
(1993).
47
48
Id. at 241.
49
See Bilych et al., supra note 2, at 20–21; Gwendolyn Sasse, Conflict Prevention in a Transition State: The
Crimean Issue in Post-Soviet Ukraine, 8 NATIONALISM & ETHNIC POL. 1, 1–26 (2002).
is important. Crimea has held a special status both in the USSR and in independent
Ukraine. Its multiethnic composition and geostrategic location have ensured this
throughout its modern history, with the region being granted a special autonomy status at
50
various times in its history. The region’s ethno-territorial distinctiveness, in fact, has been
said to provide the rationale for its post-Soviet autonomy, even if the latter has been
51
“defined in territorial rather than ethnic terms.” In 1954, the Soviet Union transferred the
Crimean peninsula from the Russian Socialist Federative Soviet Republic to the
administration of the Ukrainian Soviet Socialist Republic. This marked what some have
52
termed “the real beginning of Crimea’s link to the Ukrainian state.” Known as the “gift,”
the rationale for this transfer remains elusive, and its continued currency in Russian and
Ukrainian politics makes Crimea an example “of how some Soviet-era decisions, especially
those involving boundary changes or shifts in competences, assumed a radically different
53
dynamic in the post-Soviet era.” Subsequent to the transfer, Crimea became a territory of
the Ukrainian Soviet Socialist Republic within the Soviet Union and remained so for
thirty-seven years until 1991 with the collapse of the USSR. When Ukraine gained its status
as an independent nation, Crimea’s status was constitutionally renegotiated in what
54
turned out to be a protracted process. It was finally granted the status of an
“autonomous republic” with the 1996 adoption of the Ukrainian constitution.
The initial draft of the Ukrainian Constitution comprised of merely limited autonomy rights
granting Crimea the status of a rayon, but a constitutional framework was created
especially for the Autonomous Republic of Crimea within Chapter X of the new
55
constitution. The protracted negotiation process between the center and Crimean
authorities, culminating in granting the region this autonomy status and the adoption of its
constitution in 1998, has been pointed to as a potential explanation for the avoidance of
conflict in the region in the aftermath of Ukraine’s independence. Gwendolyn Sasse has
made this argument, explaining that the stop-go institutionalization of Crimean autonomy
56
post-1990 played an important conflict-preventing role. The process was mired in
confusion over who exercised legitimate authority in the region, she argues, but the very
57
fact that power players attempted to resolve the issue constitutionally is significant.
50
See SASSE, supra note 46, at 83.
51
Id. at 106.
52
Id.
53
Id. at 96.
54
See id. at 175–200.
55
See Wydra, supra note 14, at 124.
56
57
See id. at 175.
Chapter X regulates the relations between Ukraine and Crimea and defines the regional
legal authority of Simferopol vis-à-vis the central government in Kiev. It emphasizes the
territorial unity of Ukraine and defines Crimea as an inseparable constituent part of
Ukraine. Crimea’s authority is determined by, limited by and derived from the Ukrainian
constitution. While Crimea is entitled to have its own constitution, neither the latter nor
58
other laws can contradict the constitution or the laws of Ukraine. According to Article
136, the authority, procedures and operation of Crimea’s governmental institutions are
determined by the constitution and laws of Ukraine and by legal acts of the Verkhovna
Rada [Parliament] of the Autonomous Republic of Crimea according to its competencies,
59
which are mainly of local importance.
In the same vein, the Crimean constitution’s first Article declares that the Autonomous
Republic is an integral part of Ukraine and must govern itself in accordance with the
60
constitution. Article 2(2) of the constitution expressly states that in a conflict between
normative acts of the Republic of Crimea and the constitution of Ukraine, the latter
61
prevails because it is supreme over all other laws and regulations. This precedence can be
illustrated with at least one significant decision of the Ukrainian Constitutional Court,
which in 2001 invalidated parts of four Crimean normative acts and declared that only the
Verkhovna Rada in Kiev could be called “parliament”; the Crimean Verkhovna Rada was
merely the “representative organ” of the Autonomous Republic of Crimea and the region’s
62
constitution one of its many “normative-legal acts.” Moreover, the Crimean constitution
invokes “state guarantees of the status, powers and the right of property of the
Autonomous Republic of Crimea,” a clear effort on the part of regional authorities to
63
prevent any downgrading of the region’s status. However, there is nothing to echo this in
the Ukrainian constitution, leaving the region’s status vulnerable to action taken at the
64
center.
58
See UKRAYNSKA KONSTITUZIYA June 28, 1996, ch. X, art. 135 (Ukr.); see also Bilych et al, supra note 2, at 20–21.
59
See UKRAYNSKA KONSTITUZIYA June 28, 1996, ch. X, art. 137 (Ukr.); Wydra, supra note 14, at 124–25.
60
See THE CONSTITUTION OF THE AUTONOMOUS REPUBLIC OF CRIMEA Oct. 21, 1998, ch. 1, art. 1.
61
See id. ch. 1, art. 2(2).
62
Dec. of the Const. Ct. of Ukraine, No. 01-rp/2001 (Feb. 27, 2001). See also SASSE, supra note 46, at 206.
63
THE CONSTITUTION OF THE AUTONOMOUS REPUBLIC OF CRIMEA Oct. 21, 1998, ch. 1, art. 3(2); see SASSE, supra note 46, at
202.
64
The constitutional commitment to a unitary state “a priori excludes any form of local,
65
territorial autonomy of a federal type.” As such, the existence of the Autonomous Region
of Crimea within a state so ardently declared unitary highlights the potentially
contradictory nature of Ukraine’s state-building project: “strengthening central state
capacity within an institutionalized state unit inherited from the Soviet period, while
66
simultaneously engaging with sub-national demands for more autonomy.” The tension
between centralization and decentralization was inscribed in the Ukrainian constitution
67
when the asymmetric autonomy arrangement was set up. Thus, the special status of
Crimea has led commentators to refer to Ukraine as a “state of regions,” an example of a
68
“federalized society,” or a “regionalized unitary state.” This was met with skepticism by
69
those worried it would result in “years of constitutional litigation and political instability”
but could also be seen as an unavoidable compromise given Crimea’s historical
separateness. Moreover, authors like Sasse writing before the 2014 crisis saw this only
partially elaborated autonomous status as a guarantee of Crimea posing “less of a threat to
the Ukrainian state, and [being] therefore less likely to be contested or eroded by the
70
center”; in other words, part of a “long game” Kiev played with Crimea in order to
71
weaken the regionalist and separatist movements within the region.
Even when there is no contradiction between provisions on the center versus on Crimea,
vagueness in the national constitution is problematic. The latter’s generic references to the
ability of Crimea to self-govern result in Crimean authority remaining dependent on Kiev’s
72
goodwill. On the one hand, after the adoption of the Ukrainian constitution that
recognized and constitutionalized Crimea’s special autonomous status and the approval of
the Crimean constitution by the Ukrainian Parliament, it appeared that the situation had
65
Paul Blokker, Constitutional Politics, Constitutional Texts and Democratic Variety in Central and Eastern Europe
20–221 (Sussex European Institute, Working Paper No. 105, 2008).
66
Sasse, supra note 44, at 70.
67
Id.
68
Id. at 69, 96.
69
Hohol, supra note 35, at 276–77 (citing Marc Lalonde, Second Symposium Notes (June 20–22, 1993)
(unpublished symposium notes, International Symposium on the Draft Constitution of Ukraine)).
70
SASSE, supra note 46, at 256.
71
Id. at 255.
72
The Venice Commission, commenting on Ukraine’s 1996 constitutional draft, remarked that it “does not have
many provisions on the matter [of Crimean autonomy] and leaves a large space of discretion to the Ukrainian
legislator.” Venice Comm’n for Democracy Through Law, Opinion on the Draft Constitution of Ukraine, COUNCIL OF
EUR. 17 (May 21, 1996), http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-
INF(1996)006-e (last visited June 16, 2015).
73
been stabilized and that “secession is no longer an issue where Crimea is concerned.” On
the other hand, notwithstanding its autonomous status, Crimea remained in a constant
74
political struggle with the center over the basics of governing. Its different political
options were evident during the 2002 demonstrations and the 2004 Orange Revolution, for
75
instance, both of which seemed to “largely bypass[] Crimea.”
II. Territorial Integrity as an Unamendable Principle in the Ukrainian Constitution
Ukrainian formal amendment procedure creates a constitutional hierarchy. At the bottom,

there is a low threshold for ordinary constitutional amendments which requires proposal
by either the President or one-third of the national legislature, adoption by a majority of
the national legislature, followed by a subsequent two thirds vote in the national
legislature. At the middle level of the hierarchy, the constitution necessitates a proposal by
either the President or two-thirds of the national legislature, adoption again by a two
thirds vote in the national legislature, and ratification via national referendum in order to
amend the constitution’s general principles, rules of elections and referendums, and the
amendment procedure itself. Finally, at the summit of the constitutional hierarchy, there
are human rights and freedoms, national independence, and territorial integrity which are
76
formally unamendable. As Article 157 of the 1996 constitution stipulates: “The
Constitution of Ukraine shall not be amended if the amendments foresee the abolition or
restriction of human and citizens’ rights and freedoms, or if they are oriented toward the
77
liquidation of the independence or violation of the territorial indivisibility of Ukraine.” The
unamendable provision thus protects fundamental rights and the independence and
78
territorial indivisibility of Ukraine from infringements by constitutional amendments.
Should this limitation on the ability to amend the constitution as stipulated in Article 157
be regarded as an eternity clause? This question arises because the unamendability is
formulated as a principle—which is more a generalized guideline—rather than as a rule
73
Mychajlyszyn, supra note 14, at 36–37. Sasse, writing in 2007, also declared that “Kyiv has managed to
integrate Crimea into the new Ukrainian polity.” SASSE, supra note 46, at 3.
74
See Robert Agranoff, Autonomy, Devolution and Intergovernmental Relations, 14 REGIONAL & FED. STUDS. 26, 38
(2004).
75
76
UKRAYNSKA KONSTITUZIYA June 28, 1996, ch. XIII, art. 154–57 (Ukr.). See Richard Albert, The Expressive Function of
Constitutional Amendment Rules, 59 MCGILL L. J. 225, 255–56 (2013).
77
UKRAYNSKA KONSTITUZIYA June 28, 1996, ch. XIII, art. 157 (Ukr.).
78
See Albert, supra note 31, at 687; Albert, supra note 76, at 255; see also Rezie, supra note 37; Bohdan A. Futey,
Comments on the Constitution of Ukraine, 5 E. EUR. CONST. REV. 29, 30 (1996).
79
requiring strict compliance. Due to its elasticity and semantic openness, unamendability
formulated as a general principle allows balancing and flexibility. As Denis Baranger
remarked with reference to the French constitution, “there is nothing objective or merely
80
procedural about such a standard as the ‘integrity of the territory.’” Therefore, the
content of the so-called eternal protection of territorial indivisibility may evolve and
change with time and in a social context; it allows debate, interpretation and
reinterpretation of its meaning.
Skeptics would argue that the commitment to territorial integrity is a declaration of

principle referring purely to securing the country’s external borders and is thus by
definition constitutionally unenforceable. In other words, it is akin to a declaration of
independence: Mostly declaratory in nature and vulnerable to political reality rendering it
meaningless. This line of interpretation is only partially persuasive. First, one might argue
that this commitment can be understood as imposing a constitutional duty on the state
organs to defend the territorial integrity of the state or struggle for its re-establishment,
especially if read together with Article 17, which makes defending the sovereignty and
81
territorial integrity of Ukraine a major state function.
Second, and more importantly, this provision should be read in the context of the entire
Ukrainian constitution, especially in conjunction with the strong judicial review powers
afforded to the constitutional court. Therefore, as we argue in greater detail in the
following section, this eternity clause appears intended to function as more than a non-
justiciable declaration of principle.
Ukraine’s provision of unamendability thus needs to be read against the background of the
entire constitution, including the role of Ukraine’s constitutional court as guardian of the
constitution and as protector of the territorial integrity. But before that, the
79
Dieter Conrad, Basic Structure of the Constitution and Constitutional Principles, in LAW & JUSTICE—AN ANTHOLOGY
186, 194 (Soli J. Sorabjee ed., 2003). On the distinction between principles and rules, see Ronald M. Dworkin, The
Model of Rules, 35 U. CHI. L. REV. 14, 25 (1967–1968); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 24 (1978); Robert
Alexy, On the Structure of Legal Principles, 13 RATIO JURIS 294, 295 (2000).
80
Denis Baranger, The Language of Eternity: Judicial Review of the Amending Power in France (or the Absence
Thereof), 44 ISR. L. REV. 389, 404 (2011).
81
Compare this with the following: Art. 104 of the constitution of the Republic of Equatorial Guinea (1991),
according to which the territorial integrity shall not be subject to reform, in conjunction with Art. 16, according to
which “All Equatorial-Guineans shall have the obligation to . . . defend [the state’s] . . . territorial integrity and
national unity . . . ”; the Bulgarian constitution (1991), according to Art. 2(2) of which “[t]he territorial integrity of
the Republic of Bulgaria shall be inviolable,” also recognizes in the Preamble the “duty to guard the national and
state integrity of Bulgaria.” See also Theodore Christakis, Self-Determination, Territorial Integrity and Fait
Accompli in the Case of Crimea, 75 ZAÖRV/HEIDELBERG JIL 75 (2015) (arguing that more than eighty constitutions
out of the 108 the author reviewed “have wording showing that any unilateral attempt to secede should be
deemed anti-constitutional, and some of them even provide for the state to adopt concrete measures to combat
secessionist activities”).
unamendability of territorial integrity must be squared with the possibly contradictory

territorial arrangements inscribed in the Ukrainian constitution.
It is not straightforward how Article 157’s unamendable commitment to indivisibility, to

the extent that it was meant as more than declarative, can be squared with the special
82
provisions on Crimea. Although the latter’s status was confirmed as exceptional by all
83
sides during the constitution-making process, maintaining Ukraine’s territorial integrity
remained of equal if not higher concern. On the one hand, Article 134 of the constitution
84
declares Crimea “an inseparable constituent part of Ukraine.” Similarly, the hard-fought
constitution of the Autonomous Republic of Crimea speaks of the region as “an integral
85
part of Ukraine.” On the other hand, Article 138(2) lists the organization and conduct of
local referendums within the competence of Crimean authorities, while the Crimean
constitution declares “sovereignty of the people” as a fundamental principle under article
86
2(1). More confounding still is Article 7(2) of the Republic’s constitution, which states:
“The territory of the Autonomous Republic of Crimea may be changed if it should be so
resolved by a republican (local) referendum and by a resolution of the Supreme Rada
[Council] of the Autonomous Republic of Crimea pursuant to the Constitution of
87
Ukraine.” The latter’s compliance with the constitution of Ukraine was certified by the
Constitutional Court of Ukraine in the case on the constitution of the Autonomous
88
Republic of Crimea of 2003.
Thus, the most plausible interpretation of “territorial indivisibility” is compatible with, and
respectful of, Crimea’s status. In other words, what the drafter plausibly sought to render
“eternal” or unamendable was the external territorial status quo at the time of
constitutional adoption—the integrity of Ukraine’s external boundaries, rather than limit
internal territorial reorganization. The Venice Commission seems to support this
interpretation: “The state’s indivisibility is not to be confused with its unitary character,
89
and therefore consorts with regionalism and federalism.”
82
The characteristics of state indivisibility and unity are strongly linked. See Stéphane Pierré-Caps, Constitutional
Non-Recognition of Minorities in the Context of Unitary States: An Insurmountable Obstacle? in THE PARTICIPATION
OF MINORITIES IN PUBLIC LIFE 11–12 (2011).
83
84
UKRAYNSKA KONSTITUZIYA June 28, 1996, ch. X, art. 134 (Ukr.) (emphasis added).
85
THE CONSTITUTION OF THE AUTONOMOUS REPUBLIC OF CRIMEA October 21, 1998, ch. 1, art. 1(1).
86
UKRAYNSKA KONSTITUZIYA June 28, 1996, ch. X, art. 138(2) (Ukr.); id. ch. 1, art. 2(1).
87
THE CONSTITUTION OF THE AUTONOMOUS REPUBLIC OF CRIMEA October 21, 1998, ch. 2, art. 7(2).
88
Dec. of the Const. Ct. of Ukraine, No. 01-rp/2003 (Jan. 16, 2003).
89
Venice Commission, supra note 16, at 3.
Even if that were the case, however, events predating the 2014 Crimean referendum
90
should have already raised the alarm concerning the constitutional text’s contradictions.
Notwithstanding the autonomous status of Crimea, the accepted understanding in Ukraine
is that Regional Self-Government entities must be “loyal to and in compliance with
91
territorial integrity.” Thus, even though many in Crimea consider Russia as their
homeland, “the Ukrainian leadership, while accepting that Crimean Russians were oriented
towards Russia, had always drawn the line on any attempt at infringing its territorial
92
integrity.” Furthermore, the fear of “separatism, secession, country breakdown and
disintegration” shaped Ukraine’s constitutional arrangements including its fundamental
93
constitutional principles as reflected in Article 157, and its perception of minority issues.
Ukraine is by no means unique amidst post-communist countries in its sensitive

constitutional balancing act: Seeking to build a strong, unitary state while ensuring,
94
sometimes reluctantly, minority accommodation in a multi-ethnic society. References to
territorial integrity abound in post-communist constitutions, alongside declarations of
95
political independence and an embrace of popular sovereignty. Moreover, the
constitutional protection of territorial integrity helps to expose common fears of territorial
disintegration and loss of independence. However, where they are accompanied by a
constitutional court empowered to enforce such provisions, the unamendability of
territorial integrity moves beyond mere proclamation and into constitutional doctrine.
90
The 1994 Crimean referendum, which proceeded despite being declared illegal by the Ukrainian electoral
commission and President, returned positive answers to the questions of whether the region should have greater
autonomy, whether its citizens should hold dual Ukrainian-Russian citizenship, and whether the decrees of the
Crimean provincial President should have the status of law. See MARK CLARENCE WALKER, THE STRATEGIC USE OF
REFERENDUMS: POWER, LEGITIMACY, AND DEMOCRACY 108 (2003).
91
V. Volkov, Problems of Improving the Constitutional Foundations of Self-Government in Ukraine, 2012 LAW UKR.
LEGAL J. 88, 98.
92
TARAS KUZIO, UKRAINE: STATE AND NATION BUILDING 87 (2002).
93
Protsyk, supra note 45, at 1–2. See generally Yegor Vasylyev, Legal Transplants in the New Constitutions:
Comparative Study of Ukraine and Poland, 4 J. EURASIAN L. (2011).
94
See Culic, supra note 26, at 44–47 (providing an overview of post-communist countries having incorporated
such constitutional provisions).
95
RETT R. LUDWIKOWSKI, CONSTITUTION-MAKING IN THE REGION OF FORMER SOVIET DOMINANCE 196–97 (1996).
III. The Constitutional Court as Guardian of the Territory
Ukraine constitutional system protects human rights and recognizes the practice of judicial
96
review. The Constitutional Court not only has authority to judicially review ordinary
legislation, but can also give judgments on proposed constitutional amendments through a
97
priori judicial review. According to Article 159 of the Ukrainian constitution, a preliminary
opinion of the Constitutional Court regarding the conformity of proposed amendments
with the requirements of Articles 157 and 158 of the Constitution—an ex ante review—is
an essential stage of the procedure in order for a constitutional amendment to be adopted
98
by the Verkhovna Rada. In other words, the preventive review by the Constitutional
Court on the compatibility of draft amendments to the requirements of Articles 157 and
158 is a prerequisite for the Verkhovna Rada to continue and to adopt the proposed
99
amendments. Thus, although the Constitutional Court’s discretion is limited by the
explicit criteria for review as stipulated in the constitution, albeit always with some leeway
because these are vague principles, the Constitutional Court is clearly granted a veto role
100
within the amendment process. Indeed, in several opinions, the Constitutional Court has
held that proposed amendments contradict the provision of unamendability and should be
101
revised.
96
See, e.g., V. Kampo, Some Issues of The Development of Constitutional Justice in Ukraine, 2011 LAW UKR. LEGAL J.
196 (2011); V. Tykhyi, The Legal Nature, Powers, Decisions and Opinions of the Constitutional Court of Ukraine,
2011 LAW UKR. LEGAL J. 206, 207–08 (2011); Serhiy Holovaty, Ukraine in Transition: From Newly Emerged
Democracy Towards Autocracy?, 26 REV. CENT. & E. EUR. L. 267 (2000).
97
See generally Roznai, supra note 31; KEMAL GÖZLER, JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS—A
COMPARATIVE STUDY 5–7 (2008).
98
UKRAINE CONST. (1996), art. 159; Tykhyi, supra note 96, at 207–08 (2011); GÁBOR HALMAI, PERSPECTIVES ON GLOBAL
CONSTITUTIONALISM 40 (2014); WOJCIECH SADURSKI, RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN
POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE 25, n. 116 (2014); see generally Futey, supra note 78
(discussing the Constitutional Court).
99
See Dec. of the Const. Ct. of Ukraine, No. 13-rp/2008 (June 26, 2008) (regarding the constitutional petition of 47
National Deputies of Ukraine concerning the constitutionality of item 3.1, Chapter IV of the Law of Ukraine “On
the Constitutional Court of Ukraine”); see also Dec. of the Const. Ct. of Ukraine, No. 06-rp/2008 (Apr. 16, 2008)
(concerning a constitutional petition of the President of Ukraine for official interpretation of provisions of Articles
5.2, 5.3, 69, 72.2, 74, 94.2 and 156.1 of the Constitution), cited in Yu Barabash, Constitutional Reform and Stability
of the Constitutional System: Coflictological-Legal Analysis of Systemic Interlinkage, 2012 LAW UKR. LEGAL J. 116,
131 (2012), http://www.ccu.gov.ua/en/doccatalog/list?currDir=18147 (providing summaries in English).
100
Oleh Protsyk, Troubled Semi-Presidentialism: Stability of the Constitutional System and Cabinet in Ukraine, 55
EUROPE-ASIA STUDS. 1077, 1089 (2003)
101
For example, see the Opinion of the Constitutional Court of Ukraine, in the case upon the appeal of the
Verkhovna Rada of Ukraine, providing an opinion regarding the constitutionality of introducing amendments to
Articles 80, 105, 126, and 149 of the Constitution of Ukraine for immunity to requirements of Arts. 157 and 158.
Op. of the Const. Ct. of Ukraine, No. 01-v/2012, (July 10, 2012) (finding the abolition of immunity of judges as
infringing upon their ability to conduct an independent, objective and fair justice for the purpose protecting
human and citizens’ rights and freedoms), http://www.ccu.gov.ua/en/doccatalog/list?currDir=182897; see also
An example of the veto role by the Constitutional Court in the amendment process is its
judgment of 30 September 2010. In 2004, the Ukrainian parliament considered an
important constitutional amendment that aimed to make substantial changes to the
organization of the executive branch. The draft amendment was duly submitted to the
102
Constitutional Court, which confirmed its admissibility. In the course of the
parliamentary debates, the original text of the amendment was substantially modified, and
the final version was adopted without being resubmitted to the Constitutional Court for its
103
opinion. Six years later, 252 People’s Deputies filed a constitutional complaint
challenging the procedural validity of the 2004 amendment before the Constitutional
Court. In its judgment, the Constitutional Court decided that because the amendment was
revised and approved by the Verkhovna Rada without the obligatory opinion of the
Constitutional Court, it was adopted in a procedural violation of Article 159 of the
104
constitution; thus it was declared unconstitutional and void. But that case concerned a
procedural review of the adoption of the amendment rather than a substantive review of
its content.
Interestingly, the Venice Commission questioned the legality and legitimacy of that
decision because the Constitutional Court conducted its review of the amendment after it
entered into force and the court only possessed authority to conduct a preliminary
105
review. However, in an earlier decision in 2008, the Constitutional Court held that it also
Op. of the Const. Ct. of Ukraine, No. 1-v/2010, (Apr. 1, 2001) (providing an opinion on the constitutionality
conformity of amendments to Articles 80, 105, and 108 of the Constitution of Ukraine, concerning guaranteeing
immunities to certain officials, with the provisions of arts. 157 and 158 of the Constitution of Ukraine, in which
the court found that providing liability exemption of People’s Deputies of Ukraine for statements that contain
insult or defamation in Parliament and its bodies might violate fundamental rights and freedoms),
http://www.ccu.gov.ua/en/doccatalog/list?currDir=108166; Kampo, supra note 96, at 196.
102
Op. of the Const. Ct. of Ukraine, No. 03-v/2004, (Dec. 10, 2003); Op. of the Const. Ct. of Ukraine, No. 02–
v/2004, (Oct. 12, 2004), http://www.ccu.gov.ua/en/doccatalog/list?currDir=108166.
103
See Opinion on the Procedure of Amending the Constitution of Ukraine, Op. of the Eur. Comm’n for Democracy
Through Law (Venice Comm’n), No. 305/2004, para. 25 (Oct. 8–9, 2004),
http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2004)030-e (expressing its
concern regarding the disregard for the role of the Constitutional Court in the amendment process).
104
See Dec. of the Const. Ct. of Ukraine, No. 20-rp/2010, (Sep. 30, 2010) (concerning the constitutionality of the
Law of Ukraine “On Introducing Amendments to the Constitution of Ukraine,” No. 2222-IV, (Dec. 8, 2004),
http://www.ccu.gov.ua/en/doccatalog/list?currDir=91909; see also Lech Garlicki & Zofia A. Garlicka, External
Review of Constitutional Amendments? International Law as a Norm of Reference, 44 ISR. L. REV. 343, 348, n. 8
(2011).
105
See Opinion on the Constitutional Situation in Ukraine, Op. of the Eur. Comm’n for Democracy Through Law
(Venice Comm’n), No. 599/2010, paras. 31–32 (Dec. 17–18 2010),
http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD%282010%29044-e; The Venice
Commission added, at paragraphs 35–36: “It also considers highly unusual that far-reaching constitutional
amendments, including the change of the political system of the country—from a parliamentary system to a
possessed the competence to exercise ex-post (rather than only ex-ante) constitutional
review of amendments to the constitution, even after these are adopted by the Verkhovna
Rada. The reasoning was based on the fact that the constitution did not restrict that
possibility and in order to adequately protect fundamental rights and freedoms, state
106
independence, and territorial integrity.
In new democracies, constitutional courts often receive a central place as guarantors of

107 108
the constitution and even of the democratic integrity in conflicted societies. The
109
Ukrainian Constitutional Court often acts as a mediator between political actors. It is
granted with a rare authority to take part in the constitutional amendment process and to
protect the provision of unamendability; most constitutional courts do not explicitly
110
possess such a competence. Put differently, the Constitutional Court is the legal
guardian of territorial integrity—among other unamendable principles—and in its opinions
on draft amendments it reviews whether draft laws “are oriented toward the liquidation of
111
the independence or violation of the territorial indivisibility of Ukraine.” Of course, it
parliamentary-presidential one—are declared unconstitutional by a decision of the Constitutional Court after a

period of six years. The Commission notes however, that neither the Constitution of Ukraine nor the Law on the
Constitutional Court provide for a time-limit for contesting the constitutionality of a law before the CCU. As
Constitutional Courts are bound by the Constitution and do not stand above it, such decisions raise important
questions of democratic legitimacy and the rule of law.” Id.
106
See Dec. of the Const. Ct. of Ukraine, No. 13-rp/2008 (June 26, 2008) (regarding the constitutionality of
Chapter IV of the Law of Ukraine, “On the Constitutional Court of Ukraine,” by the appeal of Forty-Seven People’s
Deputies of Ukraine), http://www.ccu.gov.ua/en/doccatalog/list?currDir=18147.
107
Gábor Halmai, Unconstitutional Constitutional Amendments: Constitutional Courts as Guardians of the
Constitution? 19 CONSTELLATIONS 182 (2012); HALMAI, supra note 98, at 40.
108
See generally Samuel Issacharoff, Constitutional Courts and Democratic Hedging, 99 GEORGETOWN L. J. 961
(2011).
109
Trevor L. Brown & Charles R. Wise, Constitutional Courts and Legislative-Executive Relations: The Case of
Ukraine, 119 POL. SCI. Q. 143, 155 (2004).
110
Of course, in some jurisdictions, courts have taken upon themselves such a judicial role, even without an
explicit authority in the constitution. See Yaniv Roznai, Unconstitutional Constitutional Amendments—The
Migration and Success of a Constitutional Idea, 61 AM. J. COM. L. 657 (2013); ROZNAI, supra note 31; GÖZLER, supra
note 97, at 5–7.
111
The involvement of courts in questions of territory is not in itself unique. See, e.g., Texas v. White, 74 U.S. 700
(1868) (deciding that despite affiliation with the Confederacy during the Civil War, states did not—and cannot—
unilaterally secede from the United States; this was a celebrated decision of the U.S. Supreme Court). A more
contemporary notable example is the Canadian Secession of Quebec case, in which the Supreme Court held that
although a majority will of a people to secede, as expressed in a referendum, must be taken into a consideration,
there are other important principles such as federalism, minority rights and the rule of law which must be
observed. According to the rule of law principle, secession of a province should be carried out according to the
Canadian constitutional rules which govern the amendment process. Moreover, the Court uncovered an
unwritten duty to negotiate in the event of a formal amendment on secession. See Reference re the Secession of
Quebec, [1998] 2 S.C.R. 217 (Can.), http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-
might be questioned how the Constitutional Court can protect the unamendable principle
when faced with significant external pressures or with an overly political issue, such as a
112
referendum on the territory. What is clear is that this “judicial preview” mechanism
demonstrates that the unamendability of the territorial indivisibility was intended to be
judicially enforceable and not merely declaratory.
C. Formal Unamendability
I. The Functions of Unamendability
Formal unamendability usually takes place in the form of explicit constitutional provisions
that designate certain constitutional subjects—such as principles, rules, institutions, and
symbols—as unamendable through the formal constitutional amendment process. There is
113
a growing trend in global constitutionalism to provide for formal unamendability. The
“new” constitutional orders in Central and Eastern Europe following the collapse of
114
communism protect human rights and recognize the practice of judicial review.
Although some have argued that it would be a mistake for these new democracies to
import the German “fondness for unamendable provisions” as the vexing questions that
115
they face ought to be resolved in the political sphere rather than in constitutional courts,
116
many of these states adopted provisions of unamendability. Among the states that
csc/en/item/1643/index.do; see also Peter H. Russell, Can the Canadians Be a Sovereign People? The Question
Revisited, in CONSTITUTIONAL POLITICS IN CANADA AND THE UNITED STATES 9, 22 (Stephen L. Newman ed., 2004);
Oklopcic, supra note 15.
112
See, cf., Holovaty, supra note 96, at 281 (“Where a decision involves a significant issue of executive authority,
such as the recent referendum decision, there is a danger of significant external pressure being exerted on the
Court to reach a decision [favorable] for the executive.”); see MARIA POPOVA, POLITICIZED JUSTICE IN EMERGING
DEMOCRACIES: A STUDY OF COURTS IN RUSSIA AND UKRAINE (2012) (providing a comprehensive study of political pressure
on judicial independence in Ukraine).
113
According to one study, between 1789 and 1944, almost twenty percent of all new constitutions included
unamendable provisions, while, between 1945 and 1988, almost thirty percent of new constitutions included
such provisions, and between 1989 and 2013, already over fifty percent of new constitutions include formal
unamendable provisions. See Roznai, supra note 16. Unamendability can also be implicit and judge-made through
judicial decisions; Roznai, supra note 110; ROZNAI, supra note 31; GÖZLER, supra note 97.
114
Wiktor Osiatynski, Rights in New Constitutions of East Central Europe, 26 COLUM. HUM. RTS. L. REV. 111 (1994);
HERMAN SCHWARTZ, THE STRUGGLE FOR CONSTITUTIONAL JUSTICE IN POST-COMMUNIST EUROPE (2002); SADURSKI, supra note
98.
115
Stephen Holmes, Back to the Drawing Board: An Argument for Constitutional Postponement in Easter Europe, 2
E. EUR. CONST. REV. 21, 22 (1993).
116
See, e.g., CZECH REPUBLIC CONSTITUTION Dec. 16, 1992, art. 9; KAZAKHSTAN CONSTITUTION Aug. 30, 1995, art. 91(2);
MOLDOVA CONST. July 29, 1994), art. 142; ROMANIA CONST. Nov. 21, 1991, art. 152(1); LEVENT GÖNENÇ, PROSPECTS FOR
CONSTITUTIONALISM IN POST-COMMUNIST COUNTRIES 372 (2002). On constitutional revisions in Eastern Europe, see
Stephen Holmes & Cass R. Sunstein, The Politics of Constitutional Revision in Eastern Europe, in RESPONDING TO
IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 275 (Sanford Levinson ed., 1995); Rett T.
incorporate provisions of unamendability, the Ukrainian case is exceptional in the role it

assigns to the judiciary. The only other constitutions empowering the Constitutional Court
to adjudicate initiatives for revising the Constitution a piori to any amendment’s adoption
117 118 119
are Kyrgyzstan, Kosovo, and Romania.
120
Unamendability fulfills various functions. Preservation of the constitutional order and its
constitutive values is a principal aim of provisions on unamendability. Formal
unamendability functions as a barrier to change, aiming to afford additional protection to
certain principles by blocking the constitutional amendment process and in so doing
averting possible alteration of basic constitutive principles and core features of the
constitutional identity. Such protected fundamentals are considered by the constitution-
drafts as worthy to last for generations. Unamendability not only points to the importance
of the enshrined principle to the constitutional order but also supposedly functions as “a
121
perfect protection against impulsive rashness,” reflecting a certain “amendophobia” that
122
the amendment process might be abused in order to repeal societies’ basic values. At
the very least, unamendability and its institutional enforcement through judicial review
mechanisms may provide additional time for the people to reconsider their support for a
123
change of their core principles, thereby hindering revolutionary movements. As Gregory
Ludwikowski, Constitutional Culture of the New East-Central European Democracies, 29 GA. J. INT’L & COMP. L. 1,
14–21 (2000–2001).
117
See Kyrgyzstan, 28 THE WORLD OF PARLIAMENTS—QUARTERLY REVIEW OF THE INTER-PARLIAMENTARY UNION 15 (2007)
(looking at the constitutional court in Kyrgyzstan where, on 14 September 2007, and without explicit authority,
the court annulled and changed two constitutional amendments on formal grounds, and in 2011 a constitutional
amendment endowed the constitutional court with an authority to provide its opinion during a preliminary
review of constitutional amendments).
118
See THE REP. OF KOSOVO CONST. June 15, 2008, arts. 113(9) and 144(3) (explicitly granting the Court authority of
an a priori review of proposed amendments and to examine whether proposed amendments diminish rights and
freedoms guaranteed by Chapter II of the Constitution. If the Court declared any proposed amendment as
“unconstitutional,” the Assembly cannot vote on it). See Enver Hasani, Preventive Abstract Control of
Constitutional Amendments and Protection of The Head of State From Unconstitutional Dismissal: The Case of
Kosovo, 1 E DREJTA—LAW REVISTË PËR ÇËSHTJE JURIDIKE DHE SHOQËRORE 105, 106 n. 188 (2003); Enver Hasani,
Constitutional Protection of the Head of State; The Case of Kosovo, 7 VIENNA J. INT’L CONST. L. 128 (2013).
119
See ROMANIA CONST. Nov. 21, 1991, art. 146(a); Ion Deleanu & Emil Boc, The Control of the Constitutionality of
Laws in Romania, 2 J. CONST. L. E. & CENT. EUR. 119, 120, 124 (1995); Ioan Deleanu, Separation of Powers—
Constitutional Regulation and Practice of the Constitutional Court, 3 J. CONST. L. E. & CENT. EUR. 57, 63 (1996);
Nicole Popa, The Constitutional Court of Romania, Twelve Years of Activity: 1992–2004, Evolutions Over the Last
Three Years, CONST. CT. BULLETIN, https://www.ccr.ro/Nr-7-2004 (last visited June 16, 2015).
120
Albert, supra note 3178; Roznai, supra note 16.
121
Jon Elster, Majority Rule and Individual Rights, in THE POLITICS OF HUMAN RIGHTS 120, 146 n. 35 (Obrad Savić ed.,
2002).
122
Roznai, supra note 16.
123
BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 20–21 (1993).
124
Fox and Georg Nolte remark with reference to the German provision of unamendability,
the framers of the German Basic Law believed that if a provision of unamendability “had
been presented in the Weimar constitution, Hitler would have been forced to violate the
constitution openly before assuming virtually dictatorial power. . . . [G]iven the traditional
orderly and legalistic sentiment of the German people, this might have made the
125
difference.”
Unamendability can also have a transformative function, contrary to its preservative one.
This is the case when unamendability seeks to repudiate the past and guide the nation to a
new path by providing it a fresh constitutional identity for a better future. It “endeavors to
repudiate the past by setting the state on a new course and cementing that new vision into
126
the character of the state and its people.” Unamendability provisions not only reflect a
constitutional commitment to certain enshrined principles but “promise a brighter
future . . . [and] imagine a more perfect polity, the kind that the citizenry aspires to
127
become and preserve.” As the principles which are protected by this prospective
unamendability might be at variance with the historical or prevailing social and cultural
128
conceptions, system of values, or conditions, this unamendability is often merely
aspirational.
Whether unamendability is aspirational or a justiciable legal commitment, and regardless

of the preservative or transformative functions of unamendability, there is one
characteristic shared by these types of unamendability, which is their expressive value. Jon
129
Elster notes that “the purpose of . . . unamendable clauses is . . . mainly symbolic.” Even
if not judicially enforceable, or regarded as merely declaratory, unamendability creates the
appearance of respect for the protected principle or institution and “makes a statement”
130
regarding its importance to the constitutional order. By designating certain principles as
unalterable, unamendability expresses the relative significance of the unamendable
124
See Helmut Goerlich, Concept of Special Protection For Certain Elements and Principles of the Constitution
Against Amendments and Article 79(3), Basic Law of Germany, 1 NUJS L. REV. 397, 397 (2008) (discussing how Art.
79(3) of the Basic Law of the Fed. Rep. of Germany prohibits amendments affecting the division of the federation
into states, human dignity, the constitutional order, or basic institutional principles describing Germany as a
democratic and social federal state).
125
Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 HARV. INT’L L. J. 1, 19 (1995).
126
Albert, supra note 31, at 685.
127
ROZNAI, supra note 31, at 40.
128
GARY JEFFREY JACOBSOHN, CONSTITUTIONAL IDENTITY 128 (2010).
129
Jon Elster, Constitutionalism in Eastern Europe: An Introduction, 58 U. CHI. L. REV. 447, 471 (1991).
130
See Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2024–25 (1995–1996)
(discussing the function of law in “making statements”).
principles to the constitutional order compared to the other amendable principles. The
unamendability of a principle or an institution sends a message to both internal and
external observers regarding the state’s basic constitutional principles thereby conveying
131
its symbolic value. As Richard Albert notes, formal unamendability “is the ultimate
132
expression of importance that can be communicated by the constitutional text.”
Therefore, unamendability carries an important symbolic, expressive, and educational
function.
Finally, unamendability can fulfill a certain deliberative task. At first glance it appears that
by blocking mechanisms for modifying certain principles or rules, unamendability takes
away citizens’ ability to participate in debates regarding society’s basic values, thereby
risking impoverishing democratic debates. However, unamendability can actually force
deliberation, hopefully public, before action is taken to either attempt to circumvent or
ignore the unamendability. In other words, the declaration of unamendability remains
important—even if conceived as eventually amendable or with a limited effect—because
its removal still necessitates political and public deliberations regarding the protected
constitutional values. True, it cannot serve as a complete bar against movements aiming to
133
abolish unamendable principles, rules, or institutions. Nevertheless, it is not completely
unusable because it has a “chilling effect,”leading to hesitation before repealing it and may
trigger political deliberation as to whether the amendment in question is compatible with
134
society’s basic principles.
131
Elster, supra note 129, at 471; Albert, supra note 31, at 699–702; see Albert, supra note 76 (discussing the
expressive function of amendment provisions).
132
Richard Albert, The Unamendable Core of the United States Constitution, in COMPARATIVE PERSPECTIVES ON THE
FUNDAMENTAL FREEDOM OF EXPRESSION (András Koltay ed., 2016) (forthcoming, on file with author),
http://ssrn.com/abstract=2601646.
133
Dietrich Conrad, Limitation of Amendment Procedures and the Constituent Power, 15–16 INDIAN Y.B. INT’L. AFF.
380, 394 (1970).
134
Jason Mazzone, Unamendments, 90 IOWA L. REV. 1747, 1818 (2005).
II. The Formal Unamendability of Territorial Integrity
The concept of territorial indivisibility was originally established as a monarchic principle of

135
inheritance and succession to avoid division of the country among the monarch’s heirs.
Interestingly, one of the earliest examples of unamendability of territorial integrity is
related to the transition of Albania from republic to monarchy. The 1928 Fundamental
Statute of the Kingdom of Albania expressly prohibited revisions to the inheritance of the
throne; to the capital; to the characteristics of Albania as a democratic, parliamentary, and
hereditary monarchy; and to its status as an independent and indivisible state. Albania’s
136
territorial integrity was inviolable and its land inalienable.
Current views on territorial integrity find that it is connected to the state’s sovereignty and
137
“right to exist.” From a constitutional theory point of view, territory is one of the
138
elements that make a state and is an important element of state authority. Because
every polity wants to preserve its own existence and identity, it appears prima facie clear
why a state would want to protect its territorial integrity, alongside other core
constitutional and democratic commitments, from possible incursions through
amendments. For “substantive democracies,” tolerance finds its limits “when its core
139
values are at stake.” Indeed, “even a tolerant democratic society must be able to police
140
its fragile borders.” States are therefore reluctant to legitimize secessionist claims
141
because they have a general interest in preserving their own territorial integrity. The will
of self-preservation and the fear of a country’s breakdown or disintegration are often
reflected in the constitutional unamendability of territorial integrity or indivisibility.
135
Joseph Marko, United in Diversity?: Problems of State-and Nation-Building in Post-Conflict Situations: The Case
of Bosnia-Herzegovina, 30 VT. L. REV. 503, 505 (2005–2006); Joseph Marko, Ethnopolitics. The Challenge for
Human and Minority Rights Protection, in PHILOSOPHICAL DIMENSIONS OF HUMAN RIGHTS: SOME CONTEMPORARY VIEWS
265, 266 (Claudio Corradetti ed., 2012).
136
THE FUNDAMENTAL STATUTE OF THE KINGDOM OF ALBANIA (1928), art. 224(2); see Lavdosh Ahmetaj, The Transition of
Albania from Republic to Monarchy, 10 EUR. SCI. J. 208 (2014),
http://eujournal.org/index.php/esj/article/viewFile/4578/4375 (providing a chronological description of the
transition from republic to monarchy). See generally Makbule Çeço, Institute of Constitutional Revision in the
Constitution of the Republic of Albania, Comparative View, 10 ACADEMICUS—INT’L. SCI. J. 126 (2014),
http://oaji.net/articles/2015/1624-1422980065.pdf (describing the constitutional amendment process in
Albania).
137
ABDELHAMID EL OUALI, TERRITORIAL INTEGRITY IN A GLOBALIZING WORLD: INTERNATIONAL LAW AND STATES’ QUEST FOR
SURVIVAL 5–45 (2012).
138
NICK W. BARBER, THE CONSTITUTIONAL STATE 22–24 (2010).
139
Angela K. Bourne, The Proscription of Political Parties and Militant Democracy, 7 J. COMP. L. 196, 199 (2012).
140
Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405, 1466 (2006–2007).
141
Chase, supra note 12, at 232–33.
Indeed, many states include within their constitution protection from amendments which
might affect or violate the principle of “integrity and the unity of the national territory” in
142 143
one term or another. These are mainly African and Eastern European states, with
144 145
some Latin America and West European exceptions. All of these national constitutions
expressly protect the inviolability of existing territorial borders and reject the possibility of
146
their change, even through the formal rules prescribing constitutional amendments.
Given the centrality of the principle of territorial integrity in international law, it is not
surprising that countries engaged in state-building processes would seek to incorporate it
into their basic laws. Territorial integrity also takes center-stage in bilateral border
147
agreements between post-communist states and their neighbors. This list shows that
such unamendability commonly appears in constitutions of many states that were former
colonial territories or formerly under foreign rule. In its external perspective which regards
interactions with other sovereigns, the unamendability of territorial integrity serves as a
142
See, e.g., CONSTITUTION OF ALGERIA February 23, 1989, arts. 178(2); id. Nov. 19, 1976, 195(5); CONSTITUTION OF
ANGOLA Nov. 11, 1975, art. 159(a); id. Jan. 21, 2010, art. 236(b); CONSTITUTION OF THE REPUBLIC OF BENIN CONST. Dec. 2,
1990, art. 156; CONSTITUTION OF BURKINA FASO June 14, 1970, art. 106; id. June 2, 1991, art. 165; BURUNDI
CONSTITUTIONAL REFERENDUM March 9, 1992, art. 182; id. Feb 28, 2005, art. 299; CONSTITUTION OF THE REPUBLIC OF
CAMEROON June 2, 1972, art. 63; id. Oct. 1, 1961, art. 47; THE CONSTITUTION OF THE REPUBLIC OF CAPE VERDE Sept. 4,
1992, art. 313; CONSTITUTION OF CHAD Apr. 14, 1996, art. 223; id. Apr. 16, 1962, art. 75; id. Nov. 28, 1960, art. 68;
COMOROS CONSTITUTION Dec. 23, 2001, art. 42; THE REPUBLIC OF CONGO CONSTITUTIONAL REFERENDUM Mar. 15, 1992, art.
178; CONSTITUTION OF COTE D’IVOIRE Nov. 3, 1960, art. 73; id. July 24, 2000, art. 127; DJIBOUTI CONST. Sept. 4, 1992,
art. 88; EQUATORIAL GUINEA CONSTITUTIONAL REFERENDUM Nov. 16, 1991, art. 104; id. Aug. 15, 1982, art. 134; id. July
29, 1973, art. 157; CONSTITUTION OF GABON Feb. 21, 1961, art. 70; CONSTITUTION OF GUINEA-BISSAU May 16, 1984, art.
102; MADAGASCAR CONSTITUTION Dec. 11, 2010, art. 163; CONSTITUTION OF THE REPUBLIC OF MALI Jan 12, 1992, art. 118;
id. June 2, 1974), art. 73; id. Sept. 22, 1960, art. 49; CONSTITUTION OF MAURITANIA July 12, 1991, art. 99(3); id. May
20, 1961, art. 54; CONSTITUTION OF NIGER Nov. 8, 1960, art. 73; CONSTITUTION OF THE REPUBLIC OF RWANDA May 30,
1991, art. 96(2); id. Dec 20, 1978, art. 91; id. Nov. 24, 1962, art. 107; CONSTITUTION OF SAO TOME AND PRINCIPE Nov. 5,
1975, art. 154; CONSTITUTION OF SOMLAIA Aug. 25, 1979, art. 112(3); TOGOLESE CONSTITUTIONAL REFERENDUM Dec. 30,
1979, art. 53; id. May 5, 1963, art. 85.
143
CONSTITUTION OF AZERBAIJAN Nov. 12, 1995, art. 158; KAZAKHSTAN CONSTITUTION Aug. 30, 1995, art. 91(2); MOLDOVA
CONST. July 29, 1994), art. 142; ROMANIA CONST. Nov. 21, 1991, art. 152(1); TAJIKISTAN CONSTITUTION Nov. 30, 1994,
art. 100; TIMOR-LESTE (EAST TIMOR) CONSTITUTION May 20, 2002, art. 156; Entela Hoxhaj & Florian Bjanku, The Basic
Principles as Limits of Constitutional Revision in the Constitutional Jurisprudence and Doctrine in Europe, 1
G.J.A.H.S.S. 47, 49–50 (2013).
144
EL SALVADOR CONSTITUTION Dec. 15, 1983, art. 248; HONDURAS CONSTITUTION Jan. 20, 1982, art. 374.
145
CONSTITUTION OF PORTUGAL Apr. 25, 1976, art. 288; CONSTITUTION OF TURKEY Nov. 7, 1982, arts. 3 and 4.
146
147
See Budapest Memorandums on Security Assurances, 1994, Council on Foreign Relations (Dec. 5, 1994),
http://www.cfr.org/nonproliferation-arms-control-and-disarmament/budapest-memorandums-security-
assurances-1994/p32484 (discussing how, in Ukraine’s case, the Budapest Memorandums on Security Assurances
included assurances against “the threat or use of force against the territorial integrity or political independence of
Ukraine” by either Russia, the United States, or the UK). This deal was struck in order to facilitate Ukraine’s
transfer of nuclear weapons on its territory to Russia and its ratification of the Nuclear Nonproliferation Treaty; it
also included assurances to Belarus and Kazakhstan. Id.
148
means to claim independence and sovereignty. In its internal, in-country perspective,
the unamendability of territorial integrity expresses the state’s prioritization of national
149
integrity over any self-determination claims which may arise. The principle of territorial
integrity does not necessarily derive from any constitutive principle of the physical
existence of the state. In other words, a state can give up part of its territory thereby
150
violating its territorial integrity and still continue to exist. Both Egypt and Israel
continued to exist without the Sinai Peninsula just as the United Kingdom would continue
151
to exist without Scotland; Canada would continue to exist without Quebec, and so on.
The question may thus be not one of physical existence but of identity:
The relationship between a country’s territory and its

identity is in many ways similar to the relationship
between an individual[’s] identity and his or her body.
Our individual or collective selves are not the same as
the bodies or territories we inhabit, yet there is a clear
and undeniable connection between the two. There
cannot be persons without bodies and no states
152
without territory.
148
See cf., Charles H. Norchi, The Legal Architecture of Nation-Building: An Introduction, 60 ME. L. REV. 281, 287
(2008) (discussing how this happens often as a transformative reaction to a prior challenged territorial integrity).
149
Burak Cop & Doğan Eymirlioğlu, The Right of Self-Determination in International Law Toward the 40th
Anniversary of the Adoption of ICCPR and ICESCR, X PERCEPTIONS—J. INT’L AFF. 115, 124 (2005),
http://sam.gov.tr/wp-content/uploads/2012/02/BurakCopAndDoganEymirlioglu.pdf.
150
WEINTAL, supra note 31, ch. 1.
151
See Paul R. Williams, Abigail J, Avoryie & Carlie J. Armstrong, Earned Sovereignty Revisited: Creating a Strategic
Framework for Managing Self-Determination Based Conflicts, 21 ILSA J. INT’L & COMP. L. 1, 2 (2015) (noting that “in
the last twenty-five years nearly three-dozen new states have emerged. Some new states have arisen from the
dissolution of states, while others have seceded from states which then continue to exist . . . ”).
152
Erik Ringmar, Russia: Territory and Identity Crises (Review Article), 2 NATIONS & NATIONALISM 453 (1996).
But as Nick Barber‫ ‏‬notes, a state can accommodate some change in its territorial
features—as well as in other elements such as its members, institution, and rules—without
153
losing its identity. It is all a matter of the extent and pace of the change. The question is
therefore: Would the state remain the same without the territory which was separated? If
that answer is no, it might be claimed that if one of the basic rationales behind provisions
154
of unamendability is to preserve a constitutional identity, then protecting the territorial
integrity from amendments makes perfect sense. In the next section we analyze what the
Crimean crisis can teach us about using unamendability in order to protect territorial
integrity, and expose our principal objection to this mechanism in the area of territorial
conflicts.
D. Unamendability and Territorial Conflicts: Lessons from Crimea
I. Unamendability of Territorial Integrity and Popular Sovereignty
The unamendability of the state’s territorial integrity may be justified by a republican

155
commitment to achieving the idea of popular self-government. If certain preconditions
such as equality of voting rights must be in place in order for a people to express itself,
then these preconditions must be entrenched. Arguably, given the link between popular
sovereignty and territory, territorial integrity is one such precondition. However, the
Ukrainian experience demonstrates that the unamendability of territorial indivisibility is
not required by popular constitutionalism and in fact might be in clear tension with
popular sovereignty.
153
BARBER, supra note 138, at 141–42.
154
See Ulrich K. Preuss, The Implications of “Eternity Clauses: The German Experience, 44 ISR. L. REV. 429, 445
(2011) (“[Unamendable provisions] define the collective ‘self’ of the polity―the ‘we the people.’ If the ‘eternal’
normative stipulations were changed, the collective self—or identity—of the polity as embodied in the
constitution would collapse.”).
155
PHILIP PETTIT, ON THE PEOPLE’S TERMS: A REPUBLICAN THEORY AND MODEL OF DEMOCRACY (2012).
Ukraine’s constitution includes several mechanisms for the expression of popular will.
Article 5 incorporates a general commitment to republicanism and popular sovereignty,
stating that “[t]he people are the bearers of sovereignty and the only source of power in
Ukraine,” while Article 69 lists elections, referendums, and “other forms of direct
democracy” as means for the expression of popular will. Hence, the people can exercise
156
their power by the free expression of their will expressly through binding referendums.
Admittedly, Ukraine’s experience with direct democracy has not always been
praise-worthy. The 2000 national referendum on increased presidential powers and the
introduction of an upper house of parliament, for instance, was criticized as a power
157
struggle between president and parliament and as an exploitation of the referendum for
158
anti-democratic purposes. What is important for our analysis is that Article 73 of
Ukraine’s constitution explicitly links popular sovereignty to the notion of territory.
According to Article 73, “[i]ssues of altering the territory of Ukraine are resolved
exclusively by an all-Ukrainian referendum,” while Article 85(2) indicates it is the Ukrainian
Verkhovna Rada which can “designat[e] an all-Ukrainian referendum on issues determined
159
by Article 73 of this Constitution.” The idea that no territorial change can take place
without consent of “the people” finds its origins in the people’s attachment to and
identification with their territory and in the idea of popular sovereignty according to which
160
the people are the true holders of sovereignty over their territory. Based upon Article
73, it seems clear that a local referendum could not resolve the issue of Crimea and
161
Ukraine’s territorial integrity.
156
CONSTITUTION OF UKRAINE June 28, 1996, arts. 5, 69; Tykhyi, supra note 96, at 208–09.
157
András Sajó, Becoming “Europeans”: The Impact of EU “Constitutionalism” on Post-Communist Pre-Modernity,
in SPREADING DEMOCRACY AND THE RULE OF LAW?: THE IMPACT OF EU ENLARGEMENT ON THE RULE OF LAW, DEMOCRACY AND
CONSTITUTIONALISM IN POST-COMMUNIST LEGAL ORDERS 180 (Wojciech Sadurski, Adam Czarnota & Martin Krygier eds.,
2006).
158
Ronald J. Hill & Stephen White, Referendums in Russia, the Former Soviet Union and Eastern Europe, in
REFERENDUMS AROUND THE WORLD: THE CONTINUED GROWTH OF DIRECT DEMOCRACY 35 (Matt Qvortrup ed., 2014).
159
CONSTITUTION OF UKRAINE June 28, 1996, arts. 73, 85(2). The Law on National Referendum of 2012 lists the
different referendum types and categories those purporting to change the territory of Ukraine as “ratification
referendums” (article 3). Article 20 of the law prohibits referendums on territorial changes brought about by
popular initiative and reiterates the ban on modifications of the constitution’s rights protections, Ukraine’s
independence and its territorial integrity.
160
EL OUALI, supra note 137, at 118. This conceptual relationship between territorial indivisibility and national or
popular sovereignty of course begs the preliminary demarcation of “a people” that is declared as “sovereign.”
See, e.g., Sofia Näsström, The Legitimacy of the People, 35 POLITICAL THEORY 624 (2007); see also Tierney, supra
note 17 (discussing the fraught interaction between self-determination and territorial integrity).
161
Bilych et al., supra note 2, at 21. One might argue that this is a case where the factual, manifested in a clear
and unequivocal majority vote in favor of separation, may well attain its own normative value; in Jellinek’s terms:
Die normative Kraft des Faktischen. See GEORG JELLINEK, ALLGEMEINE STAATSLEHRE 337–44 (3d ed. 1993); see, cf.,
From the point of view of constitutional theory, as Stephen Tierney has explored in his
contribution to this volume, the question raised by the Crimean crisis is whether, despite
162
being illegal, its 2014 referendum can plausibly be seen as legitimate. If we ascribe even
partial legitimacy to the 2014 independence referendum in Crimea, it demonstrates what
Stephen Tierney has previously argued, namely:
[T]he danger of using referendums in deeply divided

societies where they can serve to expose and indeed
inflame what is often a dormant disjuncture between
the boundaries of territorial government and the
163
nature of the demos/demoi within that territory.
While classifying Ukraine as a “deeply divided society” post-independence may be an

164
exaggeration, the inflammation of its ethno-linguistic divides have exposed the
vulnerability of the country’s incomplete internal state- and nation-building processes.
Recent events have illustrated the dangers of assuming the “territorial boundaries of the
165
demos . . . to be self-evident.” Conversely, if Crimea’s 2014 independence referendum is
viewed as nothing more than a forceful annexation—“a seizure of territory under threat of
166
force, i.e. as an unlawful annexation” —the territorial boundaries of the state are
revealed as never having been secure in the first place.
Such vulnerabilities are obscured by the categorical language of Ukraine’s eternity clause
and expose the contents of the clause as more aspirational than preservative.
EDWARD MCWHINNEY, CONTITUTION-MAKING: PRINCIPLES, PROCESS, PRACTICE 40 (1981). On the “Normative Power of the
Factual,” see MARTIN LOUGHLIN, FOUNDATIONS OF PUBLIC LAW 218 (2010); Tierney, supra note 17.
162
Tierney, supra note 17.
163
STEPHEN TIERNEY, CONSTITUTIONAL REFERENDUMS: THE THEORY AND PRACTICE OF REPUBLICAN DELIBERATION 75 (2012).
164
See Paul S. Pirie, National Identity and Politics in Southern and Eastern Ukraine, 48 EUR.-ASIA STUDS. 1079–104
(1996) (exploring the complexities of identities in Ukraine); see also Sasse, supra note 44, at 70 (discussing how
some have even argued against oversimplifying the issue of regional diversity in Ukraine, claiming it served as “a
key to Ukraine’s political stability” during its state-building process).
165
TIERNEY, supra note 163, at 59.
166
The main question for our purposes is how this commitment to popular sovereignty
corresponds with the provision of unamendability protecting the territorial integrity. A
commentator on the Ukrainian crisis has suggested that in order to avoid bloodshed,
Ukraine should reform its borders through a referendum: “Let the people decide. If eastern
167
Ukraine really has an affinity for Russia, then let it become a part of Russia.” Because the
168
Ukrainian constitution defines Crimea as an inseparable constituent part of Ukraine, and
provides that “[t]he territory of Ukraine within its present border is indivisible and
169
inviolable”, any secession of Crimea necessitates amending the constitution through a
170
national referendum. Such an act would still problematically be prohibited by the
171
provision of unamendability. Therefore, Ukraine’s provision of unamendability, which
protects territorial integrity from violation by reforms and is enforceable by the
172
Constitutional Court, prevents any secession by referenda.
There are two possible solutions to solve this enigma, neither of which is satisfactory. One
solution would be the adoption of a new constitution unbound by provisions of
173
unamendability through a whole new constituent process. Such an action might be
considered a constitutional violation and thus unconstitutional under the current
174
constitution, but its authoritative legitimacy could be granted ex-post facto. Thus, as
Stephen Tierney has discussed in this volume, “popular” legitimacy would again be relied
175
upon to overcome a crisis in legality. A second solution, and a legal one, would be
amending the amendment provision itself, through a national referendum as allowed by
the constitution, in order to amend Article 157 and remove the unamendability of the
territorial indivisibility; then, in the second stage, deciding through a national referendum
on the possible division of the territory. This solution would be possible because Article
157, like most provisions of unamendability, is not self-entrenched and could thus be
“amended out” of the constitution through a “double-amendment process.” Such an act
would be legal from a formalistic perspective, although its legitimacy would be
176
questionable as it may be regarded as a “fraud upon the constitution.”
167
R. Lauren Johnson, A Plan for Ukraine, VALLEY NEWS (May 9, 2014), http://www.vnews.com/opinion/11891746-
95/letter-a-plan-for-ukraine (last visited June 16, 2015).
168
CONSTITUTION OF UKRAINE June 28, 1996, art. 134.
169
Id. art. 2.
170
As required by the Constitution. Id. art. 156.
171
172
Andrew Cybruch, Ukraine’s Sovereignty and Territorial Integrity Are Settled, VALLEY NEWS (May 23, 2014),
http://www.vnews.com/home/11999951-95/letter-ukraines-sovereignty-and-territorial-integrity-are-settled (last
173
See ROZNAI, supra note 31. Of course, overcoming unamendability by beginning a whole new constitution-
making process increases the costs as it opens the entire constitution for re-negotiation and accordingly facilitates
strategic bargaining. See Stephan Michel and Ignacio N. Cofone, Credible Commitment or Paternalism? The Case
The dilemma can be manifested through the following hypothetical scenario, an unlikely
possibility in Crimea as Ukraine would most likely not agree to secession: We can imagine
that the people of an autonomous region wish to secede, as manifested by a genuine local
referendum. We can further suppose that such secession is debated within the political
bodies which then proceed with a constitutional process for amending the constitution
accordingly. Finally, through a national referendum, which is the appropriate procedure for
deciding alterations to the territory of Ukraine according to Article 73, “the people”
approve such an amendment. The sovereign people, the ultimate holders of constituent
power, would thereby choose to alter the unalterable constitution passed in their name.
This secession, ratified by a constitutionally permissible national referendum, would still
violate Ukraine’s unamendable provisions and is thus impermissible, as the people
177
themselves are bound by the unamendability. By barring constitutional reform which
assails territorial integrity, unamendability attempts to place the state’s territory not only
178
beyond ordinary politics, but also “beyond the popular will.” Hence, it is in clear tension
with popular sovereignty.
of Unamendability, PAPER PRESENTED AT THE INTERNATIONAL SOCIETY OF PUBLIC LAW WORKSHOP ON UNAMENDABLE
CONSTITUTIONAL PROVISIONS (Koç University Law School, 9 June 2015) (on file with authors).
174
Cf., Andreas Kalyvas, Popular Sovereignty, Democracy, and the Constituent Power, 12 CONSTELLATIONS 223, 231
(2005).
175
176
Richard Albert, Constructive Unamendability in Canada and the United States, 67 S.C.L.R. 181, 209–15 (2014);
Yaniv Roznai, Amending ‘Unamendable’ Provisions, CONSTITUTION-MAKING & CONSTITUTIONAL CHANGE BLOG (Oct. 20,
2014), http://constitutional-change.com/amending-unamendable-provisions/ (last visited June 16, 2015).
177
See generally THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM (Martin Loughlin &
Neil Walker eds., 2007) (discussing the paradoxes of the constitutional order and constituent power); The Paradox
of Constitutionalism: Constituent Power and Constitutional Form, 6 INT’L J. CONST. L. 358 (Martin Loughlin & Neil
Walker eds., 2008), http://icon.oxfordjournals.org/content/6/2/358.full.pdf (reviewed by Zoran Oklopcic).
178
John McGarry, Brendan O’Leary & Richard Simeon, Integration or Accommodation? The Enduring Debate in
Conflict Regulation, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? 41, 48 (Sujit
Choudhry ed., 2008).
Often, that is precisely the role of unamendability. Unamendability, as a counter-

179
majoritarian institution, aims to neutralize the dangers of majoritarianism. It reflects the
idea that certain principles, such as fundamental rights, rule of law, and the democratic
180
principle itself are not subject to the will of the majority, which might abuse them. By
181
that, unamendability serves not only to prevent abuse by leaders, but to serve as a
pre-commitment mechanism of “the people” to protect itself against its own weaknesses
182
and passions. These rationales do not apply to territorial integrity—at least not to a
same extent. Thus, the people should be allowed to make this constitutional change
dealing with the territory. As long as concern for minority rights is taken into consideration
when dealing with negotiations in a context of secession, as Canada’s Supreme Court
183
emphasized in its Secession Reference case, allowing the people to amend their
constitution after political deliberation and approval through a national referendum would
still maintain a high bar for that constitutional change while simultaneously satisfying the
184
ideals of republican constitutionalism.
179
180
See, e.g., Gunnar Beck, The Idea of Human Rights Between Value Pluralism and Conceptual Vagueness, 25 PENN
ST. INT’L L. REV. 615 (2006–2007); ARNOLD BRECHT, FEDERALISM AND REGIONALISM IN GERMANY: THE DIVISION OF PRUSSIA 138
(1945).
181
Charles M. Fombad, Limits on the Power to Amend Constitutions: Recent Trends in Africa and Their Potential
Impact on Constitutionalism, 6 UNIV. BOTS. L. J. 27, 57 (2007).
182
STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY 135 (1995).
183
See Reference re Secession of Quebec, [1998] 2 S.C.R. 217, paras. 48–54, 79–82, 90, 93 (Can.); see also
Oklopcic, supra note 15; Tierney, supra note 17. But see DAVID HALJAN, CONSTITUTIONALISING SECESSION 325 (2014)
(questioning how the Supreme Court's reference to minority protection functions alongside the other three
principles it put forth for negotiating secession).
184
ÍLKER GÖKHAN ŞEN, SOVEREIGNTY REFERENDUMS IN INTERNATIONAL AND CONSTITUTIONAL LAW 142 (2015) (“[R]eferendums
may fulfill an effective veto function whenever there is a threat to territorial integrity. Thus, a constitutional
requirement for the consent of the majority as a condition for a territorial modification may be portrayed as a
wise safeguard in the face of political realities.”).
II. The Limited Effectiveness and Risks of Unamendability of Territorial Integrity
A major lesson from the crisis in Crimea is the limited effectiveness of attempts to settle
territorial conflicts through unamendability. The unamendability of the territorial integrity
principle within the Ukrainian constitution may be regarded as a mechanism aimed at
preserving this principle by adding another layer of constitutional illegality to cover
situations such as Crimea’s. It was meant to be preservative rather than merely
declarative, and its intended function is evident from judicial enforcement of
unamendability by the Constitutional Court. Nonetheless, while the unamendability
provision provided a legal peg on which to hang arguments against territorial change,
neither Crimea nor Russia seemed particularly deterred in their course of action by threats
185
of either constitutional or international illegality. Furthermore, as noted earlier,
Ukraine’s constitution already contained mechanisms that were arguably stronger
encouraging national deliberation in the eventuality of redrawing the territorial map, not
the least of which were national referendums. The recourse to unamendability was meant
as an added safeguard but turned out to be no match for forces from both within and
without.
The unamendability of the territorial integrity, which must be read in the context of the
186
country’s complicated state- and nation-building post-independence process, also
carried an aspirational aspect. Kiev used unamendability to deal with a complex territorial
challenge and to entrench its long-term hold on Crimea. The provision of unamendability
expressed an aspiration for the resolution of this challenge—the full integration of Crimea
within the Ukrainian state—more than an uncontested reality. As this article discussed
previously, the problem with aspirational unamendability is that its characteristics might
187
be at odds with the prevailing culture or circumstances of the society. Territorial
indivisibility was incorporated as aspirational in the national constitution, but many of the
region’s citizens may never have wanted to be part of Ukraine at all. The unamendability,
which started out as a constitutional provision with preservative and aspirational
functions, could end up being aspirational and nothing more.
185
Of course, from this lack of deterrence one should not infer conclusions regarding the legality of the act. See
Christakis, supra note 81
[N]o self-respecting legal order can remain indifferent to the events

that have marked Russia’s annexation of Crimea. Failure to react
would send the message that ‘might makes right’ and would harm
international relations because powerful states might henceforth be
tempted to use force against their neighbors to provoke ‘blitz
secessions’ and annex ethnic, linguistic, or religious ‘sister’ minorities
who dream of becoming part of the ‘motherland.’
186
187
See JACOBSOHN, supra note 128, at 128.
True, all constitutional provisions of unamendability cannot have an absolute effect. In

1918, A. Lawrence Lowell wrote that “the device of providing that a law shall never be
188
repealed is an old one, but I am not aware that it has ever been of any avail.” Similarly,
Benjamin Akzin expressed his skepticism regarding the usefulness of eternity clauses since,
if “the demand for change were to become so strong . . . it is hardly imaginable that its
protagonists would renounce their objectives only because the Constitution says that the
189
provision is inviolable.” From a purely factual point, that is certainly correct. “In a
conflict between law and power,” Hannah Arendt wrote, “it is seldom the law which will
190
emerge as victory.” No constitutional schemes, even those that expressly attempt to do
191
so, can hinder for long the sway of real or brute forces in public life. Constitutional
192
unamendability is therefore a question of both norm and fact. The ability of physical
power to force prohibited changes—for example, a forcible annexation of territory, which
would violate the territorial integrity or a forcible revolution to overcome
unamendability—is unquestionable. From a legal perspective, the question remains
whether forced territorial or constitutional changes would be valid according to the
193
constitutional system’s standards.
188
A. LAWRENCE LOWELL, GREATER EUROPEAN GOVERNMENTS 103 (1918).
189
Benjamin Akzin, The Place of the Constitution in the Modern State, 2 ISR. L. REV. 1, 12 (1967).
190
HANNAH ARENDT, ON REVOLUTION 142 (2006).
191
Benjamin Akzin, On the Stability and Reality of Constitutions, 3 SCRIPTA HIEROSOLYMITANA 313, 332 (1956).
192
Víctor M. Muñiz-Fraticelli, The Problem of a Perpetual Constitution, in INTERGENERATIONAL JUSTICE 379, 379–80 (A
Gosseries and L. Meyer eds., 2009).
193
Walter F. Murphy, Staggering Toward the New Jerusalem of Constitutional Theory: A Response to Ralph F.
Gaebler, 37 AM. J. JURIS. 337, 348 (1992).
Whereas these statements are correct with regard to all provisions of unamendability, they
are all the more relevant to the unamendable protection of territorial indivisibility. The
constitutional protection of territorial integrity is Janus-faced, looking both externally and
internally. Externally, it looks to the relationship between states and to the protection of
territorial integrity against external threats and use of force such as armed attacks,
annexation, and occupation. Internally, it aims to protect the territory against internal
threats, mainly by limiting people’s claims to what is termed ‘external self-determination’
194
by territorial secession. There is thus a conceptual difference between the
unamendability of territorial integrity versus unamendability of other principles such as
fundamental rights, secularism, separation of powers, and the form of government. The
latter principles are all under domestic control, regulated by various governmental and
institutional bodies, which allow—especially when accompanied by effective mechanisms
of judicial review—for the enforcement of provisions of unamendability. For example, the
Turkish Constitutional Court was able to protect the unamendable principle of secularism
from infringements by governmental attempts to amend the constitution in order to
195
abolish a headscarf ban in universities; the Czech Constitutional Court managed to
protect the unamendable principle of the rule of law by invalidating an ad hoc
constitutional act which called early elections by bypassing the established constitutional
196
procedure. These were instances where unamendable basic constitutional principles
were challenged by domestic institutions. Territorial integrity is distinct because it faces a
dual threat, internal and external, which is independent of state authority, hence making it
more vulnerable than other unamendable principles. If the state fears the voluntary ceding
of territory under external pressure or coercion, what could be the utility of an
unamendability clause on territorial integrity?
194
See generally Milena Sterio, On The Right to External Self-Determination: “Selfistans,” Secession, and the Great
Powers’ Rule, 19 MINN. J. INT’L L. 137 (2010); Jure Vidmar, The Annexation of Crimea and the Boundaries of the Will
of the People, 16 GERMAN L.J. 365 (2015); Amandine Catala, Secession and Annexation: The Case of Crimea, 16
GERMAN L.J. 581 (2015); EL OUALI, supra note 137, at 113–66, 241–94.
195
See Yaniv Roznai & Serkan Yolcu, An Unconstitutional Constitutional Amendment—The Turkish Perspective: A
Comment on the Turkish Constitutional Court’s Headscarf Decision, 10 INT’L J. CONST. L. 175 (2012); Ergun Özbudun,
Judicial Review of Constitutional Amendments in Turkey, 15 EUR. PUB. L. 533 (2009).
196
See Yaniv Roznai, Legisprudence Limitations on Constitutional Amendments? Reflections on the Czech
Constitutional Court’s Declaration of Unconstitutional Constitutional Act, 8 VIENNA J. INT’L CONST. L. 29 (2014);
Kieran Williams, When a Constitutional Amendment Violates the Substantive Core: The Czech Constitutional
Court’s September 2009 Early Elections Decision, 36 REV. CEN. & EAST EUR. L. 33 (2011); Jan Kudrna, Cancellation of
Early Elections by the Constitutional Court of the Czech Republic: Beginning of A New Concept of “Protection of
Constitutionality,” 4 JURISPRUDENCIJA/JURISPRUDENCE 43 (2010).
First, it may attach the stigma of domestic illegality to the breakaway unit or its annexing
state, but that is not a very strong disincentive. Especially, when combined with potentially
197
plausible legitimacy claims, this deterrent becomes even less effective. Additionally,
from an international law point of view, “such constitutional provisions have no legal effect
198
on the international order.”
Second, the unamendability of territorial integrity might be regarded as a welcome

mechanism for protecting democratic decision-making against “blackmail” by minorities. It
allegedly shuts down the option for secession and, at the very least, enhances the
bargaining position of those against separatism, if unamendability is not interpreted as
199
providing a duty to uphold the territorial integrity. As Cass Sunstein suggested,
constitutions should not include a right to secede since protecting such a right equips
200
minority groups with a strategic and even dangerous weapon and power of bargaining.
Even if one accepts Sunstein’s claim, there is an important difference between not
including a right to secede within a constitution or even explicitly forbidding such a right,
and absolutely entrenching territorial indivisibility as unamendable. As Ìlker Gökhan Şen
writes:
With the exception of [ . . . ] rare cases, unilateral

secession is forbidden by the quasi-totality of the
World Constitutions. This does not exclude, however,
the constitutional regulation of the territorial
modification of a state. It is not illogical to assume that
the constituent power anticipate a future threat to the
territorial integrity and prefer to frame a procedure to
regulate against such an occurrence. Consequently,
numerous constitutions include the referendum device
as a condition for secession or other form of territorial
201
alteration that may prove inevitable and irreversible.
197
See also Tierney, supra note 17.
198
Christakis, supra note 81.
199
See, supra note 81.
200
See Cass Sunstein, Constitutionalism and Secession, 58 UNI. CHI. L. REV. 633, 634 (1991)
To Place such a right in a founding document would increase the risks

of ethnic and factional struggle; reduce the prospects for
compromise and deliberations in government; raise dramatically the
stakes of day-today political decisions; introduce irrelevant and
illegitimate considerations into those decisions; create dangers of
blackmail, strategic behavior; and exploitation; and, most generally,
endanger the prospects for long-term self-government.
201
ŞEN, supra note 184, at 142.
The risk is that, in terms of constitutional dynamics, unamendability might serve the exact
opposite of its original preservative purpose: Not only does it not prevent the changes, but
by blocking any chance of achieving them through peaceful and political means, it
202
encourages the realization of these changes in an extra-constitutional manner. One
study demonstrates that the lack of a strategic framework that produces peaceful
resolutions to self-determination-based conflicts “grants independence to entities that
203
fight their way to independence, which perpetuates violence and instability.” According
to this perspective, unamendability of territorial integrity is not only ineffective but might
204
also frustrate attempts at peace-making.
It is true that unamendability in general may be more effective in ordinary peaceful times
than in times of crisis and in states where political players understand that they have to
play according to the democratic rules of the game. To that end, unamendability can be
205
described by the metaphor of a lock on a door. A lock cannot prevent housebreaking by
a determined burglar equipped with good burglary tools, and even more to the point, it
cannot prevent its own—or the entire door’s—destruction by sledgehammer or fire. At the
same time, there is no need for the safety measure of a lock if we are dealing solely with
honest people, because then there is no fear that any of them will attempt to break into
the house. The lock’s utility is in deterring those who usually obey the accepted rules when
those rules are accompanied by effective safety-measures. When such measures are
missing and they are facing an easy opportunity to improve their condition at the expense
of others, burglars may succumb to the temptation to exploit this opportunity. Finally, the
lock also has a psychological function: It is a mechanism we use in order to reassure
ourselves that we are safe and protected.
202
See, e.g., Andrew Friedman, Dead Hand Constitutionalism: The Danger of Eternity Clauses in New Democracies,
4 MEXICAN L. REV. 77, 93–96 (2011).
203
Williams, Avoryie & Armstrong, supra note 151, at 21 (contending that territorial conflicts are more likely to
recur than other types of conflicts). See Suzanne Werner, The Precarious Nature of Peace: Resolving the Issues,
Enforcing the Settlement, and Renegotiating the Terms, 43 AM. J. POL. SCI. 912, 915, 924 (1999).
204
Cf. Christakis, supra note Error! Bookmark not defined. (“[F]or Crimea, as probably for other very difficult
cases that sour international relations . . . only a solution that is negotiated and freely accepted by all the
protagonists will probably bring about a solution to this fierce conflict between unlawful effectivités and the
law.”).
205
See ROZNAI, supra note 31, at 217.
In the same way, unamendability cannot block extra-constitutional measures. It is also not
needed when the socio-political culture is that of self-restraint and lawfulness because, in
that situation, there is no fear of an attempt to change the political system’s fundamental
structures or to abuse power. Unamendability is aimed at preventing the same temptation
the burglar faces. Finally, in its aspirational aspect, unamendability makes us feel good
about ourselves. Karl Loewenstein was not mistaken in his observation that in ordinary
peaceful times, unamendability can function as a useful red light before political actors
attempt to change the constitution. In contrast, during times of crisis, unamendability is
206
just a piece of paper which political reality could disregard or ignore.
E. Conclusion
Before concluding, a few disclaimers are warranted. In this paper, we are arguing neither
207
against nor in favor of the general use of unamendability. We also acknowledge the
importance of territorial integrity and do not argue in favor of or against the right to
208
secede. We do claim that if constitutional designers wish to use the mechanisms of
unamendability, they should reserve it for protecting the most basic principles of the
democratic order, which can be enforced and not ignored at will. Unamendability is a
“complex and potentially controversial constitutional instrument, which should be applied
209
with care,” especially when it is used in order to protect the state’s territorial integrity.
206
Karl Loewenstein, Constitutions, Constitutional Law, in MARXISM, COMMUNISM, AND WESTERN SOCIETY: A
COMPARATIVE Encyclopedia 169, 180–81 (C.D. Kernig ed., 1972).
207
In fact, one of us has argued that unamendability rests upon a solid theoretical ground. See ROZNAI, supra note
31; Yaniv Roznai, Towards a Theory of Unamendability (NYU School of Law, Public Law Research Paper No. 15-1,
2015), http://ssrn.com/abstract=2569292. The other has investigated the democratic legitimacy of eternity
clauses and found it to vary considerably according to the substance and method of adoption and repeal of such
clauses. See SILVIA SUTEU, ETERNITY AND THE CONSTITUTION: THE PROMISE AND LIMITS OF ETERNITY CLAUSES (PhD Thesis,
forthcoming 2015).
208
Such recognition carries its own risks. See Christakis, supra note 81 (arguing that “accepting to extend a right of
secession to the post-colonial context would open up Pandora’s box by allowing the world’s 6000 ethnic groups
to claim a right of secession”).
209
Venice Commission for Democracy through Law (Venice Commission), Report on Constitutional Amendment,
COUNCIL OF EUR. 43 (Jan. 19, 2010), http://www.venice.coe.int/webforms/documents/CDL-AD(2010)001.aspx (last
Unamendability of territorial integrity is more vulnerable than other principles protected

via constitutional eternity clauses. It is subject to the internal threat of secessionist
movements and the external threat of forceful annexation, both of which are plausible
frames within which to cast the 2014 Crimean crisis. As the latter situation has shown,
territorial unamendability is an especially ineffective example of the preservative function
of the eternity clause. In fact, unamendability played no direct role in the current crisis,
which raises imperative questions regarding the ability or inability of constitutional law to
effectively address and regulate issues relating to the indivisibility of a state’s territory.
Crimea is also a case that exposes the limits of constitutional law and theory in the face of
claims of popular sovereignty legitimized, however problematically, via referendums.
Given “the deep pathology of uncertainty” in both constitutional and international law in
210
this area and the various “overlapping and conflicting” legal doctrines,
constitutionalizing territorial integrity as unamendable does little to clear the waters.
Additionally, the Ukrainian crisis exposes the vicious cycle at work behind unamendability.
We ascribe certain principles as unamendable because we know that these are the most
fragile. Samuel Issacharoff is right in claiming that the provisions which “are off the table
211
for internal change generally reflect[] the birth pangs of that particular society.”
Constitution-drafters design provisions so as to work exactly against the features of a
state’s tradition and culture which could cause damage through the ordinary political
212
process. We assign unamendability to those principles which are considered at risk, but
unamendability itself cannot provide complete—or, in the case of territorial integrity,
perhaps any effective—protection. Ignoring certain unamendable fundamental principles
might lead to disrespect of other imperative unamendable principles. Weakening
unamendable fundamental constitutional principles widens the gap between
constitutional norms and constitutional reality, thereby challenging constitutional
supremacy, undermining respect for the constitutional ordering itself, and destabilizing the
entire constitution. When territorial integrity is under threat, and the entire constitutional
order is jeopardized, our inadequate unamendable “lock on the door” will likely prove of
poor make indeed.
210
211
Issacharoff, supra note 140, at 1430. In this respect, Kim Lane Scheppele is correct in claiming that
constitutions are not only future looking, but also reacting to past events. See Kim Lane Scheppele, A Constitution
Between Past and Future, 49 WM. & MARY L. REV. 1377 (2008).
212
Cass R. Sunstein, Constitutionalism, Prosperity, Democracy, 2 CONST. POL. ECON. 371, 385 (1991).
Secession and Annexation: The Case of Crimea

By Amandine Catala
Abstract
The recent crisis involving the territory of Crimea has been characterized both as a case of
wrongful annexation and as one of rightful secession. Territory and competing territorial
claims lie at the heart of the normative questions of secession and annexation. Any
normative theory of secession or of annexation must therefore address their territorial
aspect: It must explain why one agent rather than another has a valid claim to the disputed
territory. One of the most interesting, yet controversial, normative accounts of secession
has been offered by choice theorists of secession. Choice theorists adopt a rather
permissive stance, based on the normative significance of political self-determination.
Choice theories, however, have been widely criticized for failing to provide a satisfactory
account of what legitimates the seceding group’s territorial claim. This article argues that it
is possible to remedy choice theories’ failure to address the question of territorial
justification adequately. To do so, this article offers a two-tier account of territory that is
grounded in the normative significance of self-determination. It defends this account of
territory by showing that it is implied by our normative condemnation of annexation. It
argues that the same reasons that warrant opposition to annexation provide support for
secession. In closing, this article revisits the case of Crimea in light of its two-tier account of
territory, and considers what role international law and institutions might play in
addressing this type of situation.
A. Introduction
The recent crisis involving the territory of Crimea has been condemned by most as the
wrongful annexation by Russia of a part of Ukraine’s territory, and defended by some as
the Crimean people’s rightful exercise of self-determination through secession: A
referendum was held in the relevant territory, Crimea, and an overwhelming majority of its
1 2
population voted to join Russia. It is difficult to grant much normative weight to the

Assistant Professor, Department of Philosophy, Université du Québec à Montréal, Email:
catala.amandine@uqam.ca.
1
The referendum took place on 16 March 2014. Results reported by election officials indicated ninety-five
percent of votes in favor of joining Russia, based on eighty percent of popular participation. See BBC, Crimea
Referendum: Voters “Back Russia Union,” (Mar. 16, 2014), http://www.bbc.com/news/world-europe-26606097
(last accessed June 18, 2015); BBC, Crimea Exit Poll: About 93% Back Russia Union, (Mar. 16, 2014),
http://www.bbc.com/news/world-europe-26598832 (last accessed June 18, 2015).
results of a referendum whose process involved dubious hastiness, aggressive propaganda,

and military occupation. But what if the referendum had taken place in very different
circumstances: What if it had looked less like it did in Crimea and more like it did in
Scotland in 2014 or in Quebec in 1995? Would secession in that case have been
normatively more defensible, or would the change in state borders implied by secession
have warranted its rightful condemnation alongside that of annexation and of other types
of process that challenge a state’s territorial integrity?
Territory and competing territorial claims lie at the heart of the normative questions of
secession and annexation. Therefore, any normative theory of secession or of annexation
must address their territorial aspect: It must explain why one agent—a certain state or a
certain group of people—rather than another has a valid claim to the disputed territory.
One of the most interesting, yet controversial, normative accounts of secession has been
offered by so-called “choice,” or plebiscitary, theorists of secession. Choice theorists adopt
a rather permissive stance, which they justify by appealing to the normative significance of
3
political self-determination. Choice theories, however, have been widely criticized for
failing to provide a satisfactory account of what legitimates the seceding group’s territorial
4
claim. Because of this major problem, choice theories are thought to fail irremediably.
This article argues that it is possible to remedy choice theories’ failure to address the
question of territorial justification adequately. To support this claim, this article offers a
two-tier account of territory that is grounded in the normative significance of self-
determination and, more precisely, on the concepts of occupancy and peoplehood. It
defends this account of territory by showing that it is implied by our normative
condemnation of annexation. That is, the same reasons that warrant opposition to
annexation provide support for secession. In other words, the two-tier territorial account
offered in this article explains consistently both why annexation is illegitimate and why
secession might be legitimate. In closing, this article revisits the case of Crimea in light of
its two-tier territorial account, and considers what role international law and institutions
might play in addressing this type of situation.
2
Here and throughout, the term “normative” is used in its moral-philosophical sense, not in its legal-juridical
sense.
3
See, infra note 10.
4
See, infra note 7.
2015 Secession and Annexation 583
B. Choice Theories and Their Critics
Different types of normative theory of secession have argued for different sets of
5
conditions under which it is morally permissible for a group to secede. Choice theorists of
secession offer one of the most controversial and interesting normative accounts of
secession. Before turning to the question of choice theories and their treatment of
territory, it will be useful to introduce the criticisms that have been leveled against them,
in order to situate the debate surrounding choice theories and to understand its key stakes
regarding territory.
Choice theorists advance a relatively permissive account of secession, which they justify by
appealing to the value of political self-determination. Choice theories have been criticized
for providing a normative account of secession that overlooks various core features of the
real-world context—for example, the institutional framework of the international legal
6
order, or the fact that secessionist claims are typically voiced by national groups. Choice
theories have also been criticized for failing to address the territorial aspect of secession
adequately—that is, for failing to provide a compelling account of what gives the seceding
7
group a valid territorial claim. In light of those problems, critics have deemed choice
theories to founder irreparably.
8
While the former type of criticism—regarding the real-world context—is mistaken, the
latter criticism—regarding territory—is warranted. However, this potentially devastating
criticism deserves more attention than it has received up until this point. This article argues
that critics have hitherto mischaracterized both the nature and the extent of choice
theories’ inadequate treatment of territory, and that a thorough analysis yields a more
promising verdict for choice theories. In more accurately capturing the nature and the
extent of choice theories’ inadequate treatment of territory, this article’s analysis might at
first appear to condemn choice theories even more harshly than previous critics have. As
will become clear shortly, this article’s analysis indeed reveals that the territorial problem
that choice theories face is in fact more fundamental, and hence more detrimental, than
previous critics have realized. However, this article’s analysis also reveals that choice
theories already rely on the key conceptual resource needed to address this fundamental
5
For a taxonomy and review of those different theories, see Allen Buchanan, Theories of Secession, 26 PHIL. & PUB.
AFFS. 30 (1997); MARGARET MOORE, Introduction: The Self-Determination Principle and the Ethics of Secession, in
NATIONAL SELF-DETERMINATION AND SECESSION 1 (Margaret Moore ed., 1998).
6
For the former type of criticism, see Buchanan, supra note 5. For the latter type of criticism, see MOORE, supra
note 5.
7
See ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW
(2004); MOORE, supra note 5.
8
See, infra Part F.
problem—namely, the normative significance of political self-determination. It is in this

sense that this article’s analysis yields a more promising verdict for the potential success of
choice theories.
How have current critics mischaracterized both the nature and the extent of the territorial
problem that choice theories face? In other words, why is a more thorough analysis
required? First, regarding the nature of the problem, current critics merely underline
choice theories’ inadequate treatment of territory; current critics fail to identify and to
spell out the theoretical causes of this inadequacy. By contrast, this article shows that
choice theories’ inadequate treatment of territory is not a mere contingent incident; it is
instead the direct result of the way these theories analyze the normative question of
secession—namely, in terms of political legitimacy. Second, regarding the extent of the
problem, current critics fail to see that choice theories’ inadequate treatment of territory is
not merely a problem of choice theories, but, more importantly, a problem for choice
theories, because choice theories’ fundamental commitment to the value of self-
determination requires them to address the territorial aspect of secession adequately. In
other words, while the criticism formulated by previous critics is an external one, resting
9
on principles choice theorists do not themselves adopt, the criticism presented in this
article is an internal one, resting on choice theorists’ very own principles. If choice theories
are committed to the value of self-determination, then they must provide a satisfactory
account of what gives the seceding group a valid territorial claim, otherwise they become
internally inconsistent. This article then proposes a two-tier account of territory that takes
into consideration the value of self-determination, thereby preserving the unique stance of
choice theories while avoiding an otherwise fatal internal inconsistency.
The aim of this article is thus both diagnostic and remedial, thereby shedding light on three
crucial yet hitherto utterly neglected points. Diagnostically, this article shows that (1)
choice theories’ inadequate treatment of territory directly follows from their analytical
lens; and that (2) adequately addressing the territorial aspect of secession is necessary for
choice theories to avoid a major internal inconsistency. Remedially, this article provides (3)
a two-tier territorial account based on self-determination, and hence precludes the self-
contradiction into which choice theories would otherwise be trapped. While this article
9
Such as the principle that only national groups can have valid secessionist and territorial claims—as nationalist
theorists of secession would argue—or that the legitimacy of an existing state is a sufficient condition not to
violate its territorial integrity—as just-cause theorists of secession would argue. For examples of nationalist
theories, see Avishai Margalit & Joseph Raz, National Self-Determination, 87 J. PHIL. 439 (1990); David Miller,
Secession and the Principle of Nationality, in NATIONAL SELF-DETERMINATION AND SECESSION 62 (Margaret Moore ed.,
1998); Will Kymlicka, Territorial Boundaries: A Liberal Egalitarian Perspective, in BOUNDARIES AND JUSTICE: DIVERSE
ETHICAL PERSPECTIVES 249 (David Miller & Sohail Hashmi eds., 2001). For an example of just-cause theory, see ALLEN
BUCHANAN, SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM FORT SUMTER TO LITHUANIA AND QUEBEC (1991);
BUCHANAN, supra note 7.
10
does not aim to provide a comprehensive defense of a choice theory of secession, the
claims formulated here are necessary to such a defense: Points (1) and (2) provide the
accurate diagnosis that any successful remedy previously requires, and point (3) attempts
to provide that successful remedy.
The article proceeds as follows. It begins, in section C, by establishing point (2) above, with
a brief examination of choice theories’ normative account of secession, underlining their
commitment to political self-determination and showing that this commitment requires a
satisfactory account of valid territorial claims. The article then goes on, in section D, to
establish point (1) above, by analyzing why choice theories’ current treatment of the
territorial aspect of secession is inadequate. Finally, to remedy this inadequacy and the
correlative internal inconsistency, the article establishes point (3) above, by offering, in
section E, a two-tier territorial account that takes into consideration choice theories’
commitment to self-determination.
C. Choice Theories’ Normative Account of Secession
To situate choice theories’ normative account of secession, a brief terminological

clarification is in order. Two distinct senses of “self-determination” are used in the
11
literature on secession: political self-determination and cultural self-determination.
Political self-determination refers to a group’s ability to define freely its political status and
endeavors. Political self-determination is a matter of degree and does not necessarily
require full political independence or sovereignty: Political self-determination may also be
exercised within the borders of a larger state. This is for example the case with federalism,
where different regional units within the larger state enjoy some degree of self-
government regionally—for example, the different states within the U.S. or the different
provinces within Canada. Thus, a group’s exercise of political self-determination consists in
determining the degree and the form of political autonomy it will enjoy. Cultural self-
determination refers to a group’s ability to set and pursue freely its cultural aspirations.
Cultural self-determination might concern certain cultural events, celebrations, holidays,
and symbols, as well as the language used in official administration, education, culture, and
the media. This is for example the case with the three linguistic-cultural communities in
Belgium, which each have autonomous jurisdiction over those matters.
10
For such comprehensive defenses, see ANDREW ALTMAN & CHRISTOPHER WELLMAN, A LIBERAL THEORY OF INTERNATIONAL
JUSTICE (2009); Harry Beran, A Democratic Theory of Political Self-Determination for a New World Order, in
THEORIES OF SECESSION 33 (Percy B. Lehning ed., 1998); David Copp, Democracy and Communal Self-Determination,
in THE MORALITY OF NATIONALISM 277 (Robert McKim & Jeff McMahan eds., 1997); Daniel Philpott, In Defense of Self-
Determination, 105 ETHICS 352 (1995); CHRISTOPHER WELLMAN, A THEORY OF SECESSION: THE CASE FOR POLITICAL SELF-
DETERMINATION (2005).
11
See, infra notes 12–13.
When choice theorists invoke self-determination in developing their normative account of

secession, they refer to political self-determination. Nationalist theorists of secession have
12
argued that cultural self-determination motivates or justifies political self-determination,
but choice theorists are not concerned with the relation between cultural and political self-
determination. Indeed, choice theorists explicitly exclude cultural self-determination from
the set of morally relevant criteria to be taken into account when determining the
13
permissibility of secession. Cultural identity is neither necessary nor sufficient for
secession to be permissible on a choice account. Thus, if it is morally permissible for a
national group—for example, the Quebecers, the Scots, the Flemings, or the Catalans—to
secede on a choice account, it will be because the group meets certain necessary
conditions, not in virtue of the fact that it shares a common cultural identity. Choice
theorists thus focus solely on political self-determination to make their normative case for
secession. Political self-determination will therefore be hereafter referred to simply as
“self-determination.” Having clarified the terminology, let us now turn to choice theorists’
normative account of secession.
According to choice theories of secession, any territorially concentrated group whose

majority wishes to do so may secede, regardless of national identity, provided that the new
state would be viable—that is, able to create or maintain stable political institutions as well
14
as sufficient economic resources—and respect human rights. For example, if San
Fernando Valley wanted to become its own independent state and were to be viable and
to respect human rights, it should be allowed to secede, according to choice theories.
Choice theorists justify their rather permissive stance by appealing to a certain account of
political legitimacy coupled with an emphasis on the value of self-determination. Choice
theories are based on two main claims: (1) A state is legitimate if it protects its citizens’
human rights; and (2) any group has a right of self-determination or the right to decide
who will govern it. More precisely, the second claim is contingent on the first: The justified
exercise by a group of its right of self-determination through secession is contingent upon
that group’s ability to protect citizens’ human rights in its new state—that is, upon the
legitimacy of the new state.
The emphasis that choice theorists place on the value of self-determination can be
appreciated by contrasting choice theories briefly with just-cause theories. Just-cause
theorists rely on the same account of political legitimacy as choice theorists do, but reach
12
See the nationalist theories advanced by Margalit & Raz, supra note 9; Miller, supra note 9; Kymlicka, supra
note 9.
13
See ALTMAN & WELLMAN, supra note 10, at 47; Beran, supra note 10, at 42; Copp, supra note 10, at 278, 289;
Philpott, supra note 10, at 365–66; WELLMAN, supra note 10, at 112.
14
See sources cited, supra note 10.
very different conclusions regarding the moral permissibility of secession. According to

just-cause theorists, a territorially concentrated group may secede if, and only if, it has
suffered a severe injustice in the larger state—major human rights violations, forcible
15
seizure of territory, or discrimination in the redistribution of resources. Thus, just-cause
theorists, like choice theorists, hold that a state is legitimate if it protects its citizens’
human rights. But from this they conclude not that any group that is able to provide such
protection is therefore permitted to secede, but rather that as long as the existing state
provides such protection—that is, is legitimate—it has a right to territorial integrity, and no
group may permissibly secede from it. In other words, just-cause theorists view political
legitimacy as a sufficient condition not to break up an existing state, whereas choice
theorists view political legitimacy as a necessary condition to create a new state.
How does this contrast between choice and just-cause theories highlight the significance of
self-determination in choice theories? Choice theorists approach the question of secession
from the position of the secessionist group and its right of self-determination, based on its
capacity to protect human rights—the legitimacy of the new state—as opposed to the
position of the larger state and its putative right to the territorial status quo based on its
capacity to protect human rights—the legitimacy of the current state. That is, choice
theorists are concerned with the necessary conditions to create a new state, as opposed to
the sufficient conditions not to break up an existing state. This sharply underlines the key
role that self-determination plays in the choice case: To focus on the necessary conditions
to create a new state, as choice theorists do, rather than on the sufficient conditions not to
break up an existing state, as just-cause theorists do, is to grant a primary role to self-
determination. Because independent statehood is the most extensive form of self-
determination, a concern for the necessary conditions to create a new state reflects a
prior, fundamental concern for self-determination.
This fundamental commitment to self-determination has significant implications for choice

theories’ treatment of the territorial aspect of secession. To avoid arbitrary partiality, any
theory of secession that centrally emphasizes self-determination must take into
consideration the self-determination of not only the secessionist group, but also the
remainder state. If a seceding group takes a piece of territory to which it does not have a
valid claim, it thereby interferes with the remainder state’s rightful exercise of self-
determination in its territory. This latter claim will be explained in more detail below. What
should be noted for now are the substantial implications of this claim: Namely, that choice
theories’ fundamental commitment to self-determination in fact requires them to address
the territorial aspect of secession adequately. If they do not do so, choice theories will
suffer from a major internal inconsistency: Between their commitment to self-
determination, which requires them to address the territorial aspect of secession
adequately, and their inadequate treatment of this territorial question.
15
For more on just-cause theories, see BUCHANAN, supra note 9; BUCHANAN, supra note 7.
D. Choice Theories and the Territorial Aspect of Secession
The inadequacy of choice theorists’ treatment of the territorial aspect of secession is the
result of two related assumptions: (1) The assumption that adequate protection of human
rights automatically creates a valid territorial claim—that is, that political legitimacy is
sufficient to have a valid title to the territory; and (2) the assumption that the normative
question of secession is therefore one of legitimate government, rather than one of
territory. In other words, choice theorists view territory as essentially a non-issue. Valid
territorial claims simply flow from political legitimacy and do not form a separate or prior
question worth pondering on its own. This section will show that choice theorists are
mistaken in thinking that political legitimacy is sufficient to establish valid territorial claims,
and it will show that territorial justification constitutes not only a conceptually separate,
but a logically prior question that warrants careful consideration.
According to Harry Beran, if a secessionist group (1) is territorially concentrated; (2)

contains a majority in its territory in favor of secession; and (3) would protect human rights
in its new state—that is, if the new state would be legitimate—then the group has a right
16
to secede. The problem with Beran’s account is that it conflates a group’s rightful
occupation of a given territory with that group’s rightful claim to that territory, should the
group want to secede. In other words, Beran equates legitimate territorial occupation or
17
the right of habitation with legitimate territorial claim or the right to secede.
Yet, simply because a group has the right to live on a piece of territory does not
automatically give that group the right to exit the existing state with that piece of territory.
For example, if a group of recent immigrants to the U.S. or U.S. permanent residents settle
in Death Valley, they may very well have the right to live on that territory—the right of
habitation—but it is unclear how that right of habitation therefore gives them the further
right to leave with that territory to create their own independent state—the right to
secede.
One might object that the seceding group in this example is not made up of U.S. citizens,
and that this is why their secession with U.S. land would be impermissible. Yet, if the entire
population of Vermont—perhaps looking for warmer climes—suddenly moved to Death
Valley and then likewise decided to secede, thereby taking away Death Valley from
legitimate U.S. jurisdiction, it is implausible that their U.S. citizenship would make their
territorial claims any more legitimate, as will be confirmed in the next section. Thus,
rightful habitation does not seem to entail rightful secession.
16
Beran, supra note 10, at 32, 36, 38–39.
17
See id. at 39.
But what if the current population of the current state of Vermont wanted to secede from
the U.S. to become its own independent state? This, perhaps, is closer to what Beran has in
mind when equating rightful habitation with rightful secession. To back up his claim that
rightful habitation entails rightful secession, Beran refers to Allen Buchanan’s argument
18
that, in a post-Westphalian world, the state, with regard to its jurisdiction over its
territory, is merely the agent of the people that live on that territory—that is, that the
19
territory ultimately belongs to the people, and not to the state. According to Beran, this
agency relationship is not immutable. Rather, the state derives its right to its territory from
the people of which it is the agent. Beran concludes that a group within the state’s
population may therefore decide to end the agency relationship and to exit the state with
20
the group’s territory.
Beran’s conclusion, however, relies on a controversial premise, which he simply assumes

without further argument—namely, that the right to the territory is not held in common by
all the people of the state. Yet, contra Beran, even if one agrees with Buchanan’s claim that
a state’s territory belongs to the people and not to the state, the exact meaning of
Buchanan’s claim remains to be established. Indeed, Buchanan’s claim is ambiguous and
lends itself to two rather different readings. Buchanan’s claim might mean either that (1)
the entirety of the state’s territory, and hence each portion of it, belongs to the entirety of
the population in virtue of the political union; or that (2) each portion of the state’s
territory belongs exclusively to each portion of the population that occupies it. The first
reading complicates the secessionists’ and choice theorists’ case. The second reading,
which is the one Beran assumes without argument, facilitates the secessionists’ and choice
theorists’ case. Yet, in order to make a compelling case, the choice theorist cannot simply
adopt whichever reading would be more convenient to make his case—here, the second
reading. A more compelling way to proceed would be to show that even the first, less
convenient reading does not undermine choice theorists’ rather permissive stance on
secession. The next section will do just that by drawing an analogy with divorce. It will
show that the choice case can be upheld only if certain conditions obtain. For now, it
should be noted that even if Buchanan is correct in arguing that a state’s territory
ultimately belongs to the people and not to the state, it does not automatically follow that
any group rightfully living on a given territory therefore has the right to take away that
territory to form its own independent state. Otherwise put, rightful habitation or the right
of habitation does not entail rightful secession or the right to secede, even if the
secessionist group would otherwise protect human rights in its new state—that is, meet
18
For more on the distinction between Westphalian and post-Westphalian conceptions of state sovereignty, see
discussion infra Part E, and David Held, Democracy: From City-States to a Cosmopolitan Order, 40 POL. STUDS. 10
(1992).
19
See BUCHANAN, supra note 9, at 108–09; BUCHANAN, supra note 7, at 219, 231.
20
Beran, supra note 10, at 35.
Beran’s and choice theorists’ criterion of political legitimacy. Thus, Beran’s choice account,
because it reduces the problem of secession to a matter of political legitimacy, falls short
with respect to territorial justification. His account therefore runs the risk of validating
unjustified territorial claims, which in turn would legitimate wrongful interference with the
remainder state’s rightful exercise of self-determination in its territory—a rather
problematic result for a type of theory that is fundamentally based on the value of self-
determination.
Like Beran, David Copp argues that any territorial and political group—that is, any
territorially concentrated group whose majority strongly wishes to form its own
21
independent state—has the right to secede. According to Copp, a state’s right to its
territory is not stronger than a secessionist group’s right to its territory. A secessionist
group has a right to the territory it occupies, a right to hold in that territory a referendum
regarding the potential creation of its new state on that territory, and a right to become
22
subsequently independently self-governing in that territory.
Like Beran, Copp mentions that for its secession to be permissible, the secessionist group
23
must have the right to occupy its territory. But Copp does not clearly specify the
necessary and sufficient conditions for the group to have this right. He vaguely suggests
that a group may rightfully occupy a territory perhaps because it has lived on it for a long
24
time, or perhaps because of some special claim such as historical ties to the land. Copp
seems to recognize the normative significance of territory when he underlines that
secession involves removing part of an existing state’s territory from that state’s
25
jurisdiction, but he does not specify exactly what constitutes a rightful territorial claim.
His vague suggestions that it may have something to do with having occupied the land for
a certain amount of time, or with having once occupied the land a long time ago, are
rather unhelpful. Consider, for example, the case of settler countries, such as Canada, the
U.S., New Zealand, or Australia. In these cases, territorial claims become an issue precisely
because one part of the population has long resided there and another part of the
population has “always” resided there, or once resided there a long time ago. In other
words, in those cases, Copp’s two criteria conflict. According to his criteria, each side of the
territorial debate is entitled to the very same territory. Like Beran’s, Copp’s choice account
falls short with respect to territorial justification. Hence, Copp’s account likewise runs the
risk of validating unjustified territorial claims, and thereby of legitimating wrongful
21
Copp, supra note 10, at 278, 293.
22
Id. at 282.
23
David Copp, International Law and Morality in the Theory of Secession, 2 J. ETHICS 219, 229 (1998).
24
Id. at 227.
25
Id.
interference with the remainder state’s rightful exercise of self-determination in its

territory.
Daniel Philpott’s choice account faces the same criticism. Philpott explicitly asserts that
establishing a case for self-determination through secession requires no particular
26
territorial argument. He rhetorically asks how land might constitute an issue that goes
27
beyond that of government. For Philpott, as for Beran, Buchanan’s characterization of
the relation between the state and its people and its territory as one of agency is sufficient
to provide secessionists with a valid territorial claim. Any self-determining group can
become the new agent of its land, as long as its new government is just. This new
government’s jurisdictional borders may be at the regional level or at the state level, but in
either case, the larger or the remainder state may not hinder the group’s rightful exercise
28
of self-government. Land is merely an empirical, contingent reality, because people who
live under the same government also happen to live in relative physical proximity; land
should not be mistaken for the object of some suspicious “organic connection” in virtue of
which some larger group or state could claim the otherwise justly governed territory of
29
another, smaller group or state. Thus, the burden of proof is on those who claim that a
group should not be allowed to exercise self-determination in the territory it occupies.
According to Philpott, to say that a piece of territory belongs to some group or entity is
30
simply to say that this group or entity is justly governing that territory. Philpott’s claim, in
effect, is that if a group provides adequate protection of human rights—that is, meets the
condition of political legitimacy—it has a valid claim to the land it occupies. For Philpott,
31
the relevant question is one of just or legitimate self-government, not one of territory.
Yet, even if one grants that the state must be territorially defined in order to provide
32
adequate protection, it does not follow that (1) the ability to provide adequate
protection entails the ability to justify the territorial claim. Conversely, it does not follow
that (2) a group’s rightful occupation of a territory entails that group’s ability to provide
adequate protection. While choice theorists would agree that this second assertion is false,
they do hold that the first one is true. And while Philpott does note that one group’s
26
Philpott, supra note 10, at 355.
27
Id. at 370.
28
Id.
29
Id. at 370, 376.
30
Id. at 370–71 n. 37.
31
Philpott, supra note 10, at 370.
32
See WELLMAN, supra note 10, at 14–15; ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 10–53 (1974); Buchanan,
supra note 5, at 47.
exercise of self-determination should not hinder another group’s ability to exercise its own
33
self-determination, he does not extend these considerations to territorial claims. Philpott
simply does not see that the seceding group’s appropriation of a part of the remainder
state’s territory might undermine the latter’s rightful exercise of self-determination in its
territory. This is because territorial justification, in Philpott’s view, is essentially a non-
issue. Or at least, valid territorial title is taken to follow automatically from a group’s ability
to provide adequate protection—that is, its ability to fulfill political legitimacy, upon which
a group’s right to exercise self-determination through secession is contingent.
Similarly, Andrew Altman and Christopher Wellman assert that a state has the right to
resist a group’s secession if, and only if, that state is required to fulfill the requisite political
34
functions—that is, to provide adequate protection of human rights. This means that if a
group is able to provide adequate protection and does not wish to remain part of the
larger state, it has a valid claim to the territory it wants to take from it. This is because,
according to choice theorists, if territoriality is necessary for the provision of adequate
protection, then it follows that a group’s ability to provide adequate protection is sufficient
for that group to have a valid territorial claim. Thus Wellman explains that a state’s rightful
jurisdictional-territorial claim is grounded in the necessity of fulfilling its function of
providing adequate protection. Hence, if a secessionist group is able to provide adequate
protection, the larger state is no longer needed to secure adequate protection, and the
latter would not be justified in resisting the secessionist group’s rightful exercise of self-
35
determination through secession.
Wellman compares this way of limiting a state’s political liberty to the way in which one’s
liberty to drive a car is limited. Both liberties, he explains, depend on the ability to fulfill a
certain function—providing adequate protection or driving safely and responsibly. In order
to avoid harming many people, one’s liberty to drive a car is limited by the requirement
that one be able to drive safely and responsibly. Likewise, in Wellman’s view, in order to
avoid harming many people, a group’s liberty to form its own independent state is limited
36
by the requirement that the group be able to provide adequate protection.
Yet, this analogy works only if the ability to drive safely and responsibly—the secessionist
group’s ability to provide adequate protection—therefore involves the liberty to take
someone else’s car, or a car one has been sharing with others—the secessionist group’s
liberty to take the territory from the larger state. But clearly, from the mere fact that I can
33
Philpott, supra note 10, at 362, 364.
34
ALTMAN & WELLMAN, supra note 10, at 46. Adequate protection of human rights is hereafter referred to simply
as “adequate protection.”
35
WELLMAN, supra note 10, at 37.
36
Id. at 37–38.
drive your car at least as well as you can—that the secessionist group is able to provide
adequate protection at least as well as the larger state—it hardly follows that I am
therefore entitled to it—that the secessionist group is entitled to the territory it wants to
take from the larger state. In other words, the car analogy assumes that it has previously
been established that one owns the car one is driving. Yet, in the case of a secessionist
group and the territory it wants to take, this valid title or legitimate territorial claim is
precisely what is at issue and what remains to be established. Just as the ability to drive a
car safely and responsibly does not give one a valid title to that car, the ability to provide
adequate protection on a piece of territory does not give a group a valid claim to that piece
of territory. Otherwise, choice theorists would be committed to the implausible claim,
which they explicitly reject, that beneficent annexation is not wrongful. For if adequate
protection is sufficient to create a valid territorial title, then it becomes unclear how the
rule of beneficent annexers, who would provide adequate protection, can be rejected as
illegitimate, even though their rule is clearly illegitimate. The reason why choice theorists
rightly reject this implausible claim is that annexation does not respect the annexed
37
group’s rightful exercise of self-determination. Yet, this idea that the group is rightfully
exercising self-determination presupposes that the group has a valid claim to the territory
38
on which it is rightfully exercising self-determination. This goes back to the principle,
invoked by choice theorists, that the territory ultimately belongs to the people, and not to
the state. Yet, while choice theorists invoke this principle to make their normative case for
secession, they do not specify what this principle means, and thus do not make clear how a
given group comes to have a valid claim to a given territory.
To review, the previous section argued that choice theories’ fundamental commitment to
self-determination (1) requires them to take into consideration the self-determination of
not only the secessionist group but also the remainder state; and that doing so (2) requires
addressing the territorial aspect of secession adequately, because a group’s appropriation
of a piece of territory to which it does not have a valid claim constitutes an unjustified
interference with the rightful exercise of self-determination of the group to which the
piece of territory belongs, as illustrated by the case of beneficent annexation.
This section has shown that choice theories fail to meet both of the aforementioned
requirements: (1) They do not consider the self-determination of the remainder state; and
(2) they do not address the question of territorial justification adequately. Indeed, choice
theorists’ focus on the question of political legitimacy, coupled with their focus on the self-
determination of only the secessionist group, turns the territorial aspect of secession into a
non-issue. That is, the secessionist group’s valid territorial claim is simply taken to follow
automatically from the group’s ability to fulfill political legitimacy in its new state; it is not
taken to form a separate or prior question worth addressing on its own. As a result, choice
37
WELLMAN, supra note 10, at 179; ALTMAN & WELLMAN, supra note 10, at 52–53.
38
See discussion, infra Part E.
theorists are unable to justify the secessionist group’s territorial claim. Choice theories
therefore run the risk of unwarrantedly legitimating the secessionist group’s wrongful
appropriation of part of the remainder state’s territory, and thereby of unwarrantedly
legitimating the secessionist group’s wrongful interference with the remainder state’s
rightful exercise of self-determination. This is a highly problematic result for choice
theorists, as it reveals a serious internal inconsistency in their theory—between their
commitment to self-determination, which requires them to address the territorial aspect
of secession adequately, and their inadequate treatment of this territorial question.
The next section will remedy this problem by proposing a two-tier territorial account that
takes into consideration the significance of self-determination, thereby simultaneously
addressing choice theories’ fundamental commitment to self-determination and the
correlative requirement of territorial justification. The section will defend this two-tier
account of territory by showing that it is implied by our normative condemnation of
annexation.
E. Self-Determination and Territory: Implications for Secession and Annexation
We have seen that entirely reducing the question of territorial justification to a matter of
political legitimacy, as choice theorists do, yields problematic results. Political legitimacy,
then, is not sufficient to establish valid territorial claims. This section argues that choice
theorists are correct in including the question of political legitimacy when offering a
territorial account, but that the question of what gives a group a valid territorial claim is a
separate and prior question that has to be addressed on its own.
What gives a seceding group a valid territorial claim? To answer this question, it is useful to
go back to the post-Westphalian conception of sovereignty briefly mentioned in the
previous section. According to the post-Westphalian conception, state sovereignty is
contingent upon state legitimacy. That is, a state’s authority over its people and its control
over its territory are contingent upon that state’s adequate protection of its citizens’
human rights. More precisely, the post-Westphalian conception of sovereignty construes
39
territory as belonging first and foremost to the people, rather than to the state. The
40
state, in exercising jurisdiction over its territory, acts merely as the agent of the people.
The state’s legitimate control over the territory is thus grounded in its legitimate authority
over the people. Both choice and just-cause theorists adopt this post-Westphalian
conception of sovereignty when developing their respective normative accounts of
secession. The fact that, under the post-Westphalian conception, territorial integrity is
contingent on political legitimacy explains why both choice and just-cause theorists define
39
See BUCHANAN, supra note 7, at 219, 231; LINDA BISHAI, FORGETTING OURSELVES: SECESSION AND THE (IM)POSSIBILITY OF
TERRITORIAL IDENTITY 74–75 (2004).
40
BUCHANAN, supra note 9, at 108–09; BUCHANAN, supra note 7, at 219.
the permissibility of secession in terms of political legitimacy. For choice theories, political
legitimacy is a necessary condition to create a new state. For just-cause theories, political
legitimacy is a sufficient condition not to break up an existing state.
How might the post-Westphalian principle that the territory ultimately belongs to the
people help the choice case? This principle seemingly has very different implications
depending on whether it means that (1) each portion of the state’s territory belongs
exclusively to each portion of the population that occupies it; or instead that (2) the state’s
entire territory—and hence each portion of that territory—belongs to the entire
population in virtue of the political union. Under the first understanding, secessionists
could easily justify their territorial claim. But under the second understanding,
secessionists might be unable to justify their territorial claim, as it is highly unlikely that the
remainder of the population will let them leave with a part of territory that, after all,
belongs to the whole population collectively. The question, then, is: Does the second
understanding of the principle pose a challenge to choice theorists’ rather permissive
stance on secession?
As secession is famously referred to as political divorce, we might begin answering this

question by looking at marriage. This first step toward answering the question will not be
sufficient, but it is nonetheless useful in building the full argument. The starting point here
is the objection that because of the political union, the entire territory of the state belongs
to the entire population—hence potentially making the secessionists’ and choice theorists’
territorial case more difficult. This objection is similar to the principle of community
property in marriage, whereby property acquired during marriage belongs to both
spouses. But the principle of community property also stipulates that any property
acquired by each spouse prior to their union remains that spouse’s separate property,
even if, upon marriage, they decided to enjoy it jointly in virtue of their union. If the couple
divorces, then, they may have to split as fairly as possible all property acquired during
marriage, but any property each person acquired prior to the union would remain that
person’s individual property, and each person would have the right to exit the union with
41
his or her pre-marriage property.
Thus, even if the entire territory of the state belongs to the entire population in virtue of
the political union, if secessionists can show that they already occupied their territory
before entering the political union, then, arguably, the remainder of the population has no
right to prevent the secessionists from taking a piece of territory that was already theirs
before the political unit was formed. Secessionists, then, could justify their territorial claim
41
One might object that using the principle of community property to build this analogy is question-begging: Why
pick this principle rather than other possible principles of marriage contracts? Because the principle of community
property constitutes a middle ground between the two extremes of complete merging and complete separation
of assets. Thus, the burden of proof here is on those claiming that a more extreme principle should be used. Of
course, opting for complete separation of assets would only reinforce the secessionists’ case.
and exercise self-determination by seceding, provided that their new state would be viable
and respect human rights—that is, provided that choice theories’ set of permissibility
conditions would be fulfilled.
Here two objections might arise. First, one might ask how to ascertain that the same group
has occupied the territory all along—that is, how to determine that a group is the same
through time. Second, one might ask what warrants using the arbitrary date of the
formation of a state to determine whether a secessionist group has a valid territorial claim.
To address the first objection, one might first note that a group’s continued existence is
not threatened by the fact that the composition of its membership changes continually.
For example, we do not have any trouble identifying the same group through time when
considering a sports team’s number of victories since its creation, a company’s number of
humanitarian gifts since its foundation, or a country’s number of Nobel Prizes since its
formation. Similarly, one can make sense of the persistence over time of groups that wish
to secede—though they obviously need not have wished to secede all along. Still, the
objector might insist that some criterion must be used to determine whether the group
qualifies as the same group over time. Addressing the second objection will provide such a
criterion.
According to the second objection, what is normatively relevant in establishing valid

territorial claims is not the fact that the group already occupied its territory before the
political unit was formed, but rather the fact that this group has long occupied this
territory, and that because of this, the group has over time developed a sustained bond or
history of social and political cooperation, giving rise to shared social practices and political
institutions. As this objection makes a normatively significant point, it will now be used to
further develop the territorial account offered in this article. As clarified below, this
sustained scheme of cooperation is the criterion that determines whether the group
qualifies as the same group over time, and hence provides the answer to the first objection
42
above.
In further developing this article’s territorial account, it is important to distinguish between

(1) the relation between a group and the territory it occupies and (2) the relation between
43
a state and the territory over which it has jurisdiction. The former relation explains what
gives a group a valid territorial claim. The latter relation explains what gives a state
42
Otherwise put, what makes a group the same group over time is not a matter of what the group is—matching
some set of objective criteria—but rather a matter of what the group does—engaged in sustained social and
political cooperation.
43
This article’s territorial account is in some respects similar to, yet in other respects crucially different from, an
account offered by Anna Stilz. See Anna Stilz, Nations, States, and Territory, 121 ETHICS 572, 578, 588–89 (2011).
For specific differences between the two accounts, see, infra notes 45 and 47.
44
legitimate jurisdiction over a given territory. As will become apparent, choice theorists’
inability to provide a satisfactory account of valid territorial claims stems from their failure
to see that, aside from the relation between a state and the territory over which it has
jurisdiction, there is a prior, normatively significant relation between a group and the
territory it occupies. As we will see, the normative significance of this relation is what
makes annexation illegitimate and secession potentially legitimate.
This article thus proposes a two-tier account of territory, based on the aforementioned
distinction. Let us now look at each level in turn. As mentioned above, a group’s territorial
concentration fosters over time a sustained relation of social and political cooperation,
bringing about common social and political practices and institutions, through which the
group is able to exercise self-determination. This sustained relation of social and political
cooperation will hereafter be referred to as a “relation of peoplehood.” This relation of
peoplehood, as the basis of the group’s exercise of self-determination, over time becomes
normatively significant. Preserving this relation of peoplehood requires respecting the
group’s occupancy of that territory. The normative significance of this relation of
peoplehood, together with the correlative requirement of respect of territorial occupancy,
creates a valid territorial claim for the group—providing the crucial piece currently missing
from choice theorists’ account of territory, namely (1) the level of the group and its
territorial claim. Choice theorists indeed focus solely on (2) the level of the state and its
legitimate jurisdiction—that is, the level at which the question of political legitimacy comes
into play. Following the post-Westphalian conception of sovereignty, a state acquires
jurisdictional rights—that is, rights to make and enforce law—over the territory a group
occupies by adequately protecting the group’s human rights and representing its interests
sufficiently well. Representing a group’s interests sufficiently well requires being sensitive
to the group’s interests, and hence granting the group such rights as free association, free
speech, and political participation. In other words, the state’s laws and institutions must
track the interests of the group. If this condition is not fulfilled, the group has the right to
45
contest the state’s authority, and this contestation can take the form of secession —at
least after a peaceable and transparent referendum is held and fair terms of separation are
reached.
44
Cf. Zoran Oklopcic, The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial
Rights and Constitutional Paradoxes, 16 GERMAN L.J. 658 (2015).
45
Here this article’s territorial account parts ways with Stilz’s, which precludes the permissibility of secession,
arguably, inconsistently. See Stilz, supra note 43, at 597, 600. Indeed, the required rights of free association, free
speech, and political participation would imply the rights for a group to select its political representatives and to
form parties advocating secession as well as local governments holding plebiscites on the possibility of secession.
If those measures are permitted, then respecting the democratic process would seem to require granting
secessionists negotiations, should the majority be in favor of secession. See Wayne Norman, Domesticating
Secession, in SECESSION AND SELF-DETERMINATION 193, 207 (Stephen Macedo & Allen Buchanan eds., 2003). Indeed,
this is the position adopted by the Canadian Supreme Court in its 1998 “Reference” on the Quebec secession
issue. See BUCHANAN, supra note 7, at 224.
This article’s two-tier account of territory raises several questions: (1) What type of group
might qualify for such territorial claims; (2) what counts as sustained cooperation; and (3)
how to address the potentially conflicting territorial claims that result from a group’s
simultaneous involvement in multiple cooperation schemes.
To answer the first question, it is not necessary to provide a list of all the groups that might
qualify as potential candidates for valid territorial claims. Rather, the spontaneous
identification of those groups by members and non-members alike is sufficient to start
examining the validity of territorial claims and hence theorizing about the permissibility of
secession. While the Scots and the rest of the UK may disagree on many important issues,
neither party disputes the fact that there is such a group as the Scots that has long
46
occupied the territory of Scotland. That being said, the relevant type of group might be a
47
state, a sub-state unit, or a tribal group, and it need not be a national group—in keeping
with choice theorists’ exclusion of nationalist arguments from the set of morally relevant
considerations to determine the permissibility of secession. As explained above, what is
normatively relevant is that the group has long occupied a given territory and has thereby
over time developed sustained social and political cooperation. Any territorially
concentrated group engaged in such sustained cooperation might thus qualify.
Specifying an exact amount of time required for cooperation to count as sustained will
always seem somewhat arbitrary. Yet, such specification is important since it will have
implications for potentially legitimate territorial and secessionist claims. Such specification
should thus balance a concern for securing territorial stability, on the one hand, with a
concern for securing the legitimate exercise of self-determination, on the other hand. A
compelling territorial account, then, will have to exclude fledgling or fleeting schemes of
social and political cooperation from the range of qualifying schemes—for example, the
earlier case of the Vermonters’ suddenly taking over Death Valley and claiming to secede.
To count these types of scheme as sustained would be to relinquish territorial stability
altogether and to dilute the meaning of legitimate self-determination to the point of
rendering it normatively insignificant. Requiring the span of at least three or four
generations would seem to alleviate those concerns by ensuring that social and political
cooperation is sufficiently maintained over time to create a normatively significant relation
between the group and its territory—that is, a relation of peoplehood that would create a
valid territorial claim, in virtue of which secession might then be justified.
46
Note that choice theorists’ exclusion of nationalist arguments from the set of normatively relevant
considerations to determine the permissibility of secession does not mean that national groups, such as the Scots,
cannot qualify for permissible secession on a choice account. As long as the new state would meet the choice
criteria of viability and of human rights protection, secession is permissible. But it is permissible in virtue of the
fulfillment of those criteria, and not in light of the fact that the group is a national group.
47
Here this article’s territorial account further departs from Stilz’s, according to which the relevant type of group
is that which results from the formation of the state. See Stilz, supra note 43, at 579–80.
A group, however, might be simultaneously involved in more than one scheme of social
and political cooperation, and hence in more than one relation of peoplehood. For
example, the Catalans are engaged in social and political cooperation both at the level of
Catalonia and at the level of Spain. In this type of case, it will be important to be able to
arbitrate between the potentially conflicting territorial claims that stem from the different
cooperation schemes. While a secessionist group is indeed likely to be involved in two
cooperation schemes—the specific one in virtue of which it wishes to create its own state,
and the larger one that it is seeking to leave—it is also likely that cooperation will not be
conducive to the secessionist group’s exercise of self-determination equally in both
schemes. Indeed, the very presence of secessionist claims would seem to confirm this.
Whichever cooperation relation is more fundamental to the group’s exercise of self-
determination—that is, is more representative of the group’s interests—will carry more
normative weight, hence establishing which territorial claim is stronger, and thereby
48
undoing the potential conflict between territorial claims.
In summary, the two-tier territorial account defended in this article articulates two
different levels or types of right to territory, corresponding to different right-holders and
normative considerations. (1) At the level of the people and the territory it occupies, the
people has a basic right of occupancy in its territory, based on its normatively significant
relation of peoplehood—that is, of self-determination. (2) At the level of the state and the
territory over which it has jurisdiction, the state has a derivative right of jurisdiction in its
people’s territory, based on normative considerations of legitimacy—that is, of adequate
protection and representation.
According to this article’s territorial account, then, choice theories can justify the
secessionist group’s territorial claim when: (1) At the group level, this group has developed
a sustained relation of social and political cooperation—that is, a relation of peoplehood,
which requires respecting its occupancy of that territory; and (2) at the state level, this
group deems that its interests are not sufficiently well represented by the state. This two-
tier account of territory takes into consideration the value of self-determination, since a
group’s valid territorial claim is grounded in the scheme of social and political
cooperation—that is, the relation of peoplehood, through which the group exercises self-
determination. This article’s territorial account thus shows how a seceding group’s
appropriation of a piece of territory to which it does not have a valid claim interferes with
48
Note that settling the territorial question—who has a valid claim to what territory—does not yet settle the
question of secession. As mentioned at the outset, the aim of this article is not to provide a comprehensive
account of morally permissible secession. In addition to the territorial component which has been the focus of
this article, other considerations would have to be taken into account in order to establish a full moral case in
favor of secession—for example, a peaceable and transparent referendum, the viability of the remainder state,
fair terms of separation regarding economic and natural resources, etc. Thus, having a valid territorial claim is a
necessary but not sufficient condition for secession to be permissible.
the remainder group’s rightful exercise of self-determination in its territory. Hence this
two-tier territorial account reinforces the claim, made above, that choice theorists urgently
need to address the territorial aspect of secession satisfactorily if they wish to invoke the
value of self-determination to ground their case for the moral permissibility of secession.
Moreover, the two-tier territorial account offered in this article shows that choice
theorists’ inability to provide a satisfactory account of valid territorial claims lies in their
failure to see that, aside from the relation between a state and the territory over which it
has jurisdiction—the level at which the question of political legitimacy comes into play—
there is a prior, normatively significant relation of peoplehood between a group and the
territory it occupies—a level at which the question of self-determination already comes
into play. While the former type of relation is what gives a state legitimate jurisdiction over
its territory, the latter type of relation is what explains the principle that the territory
ultimately belongs to the people. Since choice theorists invoke this latter principle, they
must also specify it: They must explain what gives the seceding group a valid territorial
claim. This section has argued that what gives a group a valid territorial claim is its
sustained scheme of social and political cooperation—that is, its relation of peoplehood,
which results from the group’s long occupancy of the territory and through which the
group exercises self-determination. In other words, this section has argued that this
sustained scheme of social and political cooperation is what explains the principle, invoked
by choice theorists, that the territory ultimately belongs to the people.
Specifying this principle in terms of occupancy and peoplehood—thereby explaining what

gives a particular group a particular territorial claim—is important because it is necessary
in order to account for the wrongfulness of annexation. By focusing solely on the level of
the state and its jurisdiction, choice theorists are unable to explain why annexation is
wrong even if it is beneficent. If a state’s jurisdictional authority over a territory is
legitimated solely by its ability to provide adequate protection, then one does not have the
conceptual means to condemn beneficent annexation, whereby the annexing agent
provides adequate protection, thereby meeting the criterion of legitimacy. As mentioned
above, choice theorists respond that annexation violates a group’s rightful exercise of self-
determination in its territory. But without a further argument regarding territory, choice
theorists’ current response simply begs the question. By contrast, by additionally
considering the prior level of the group and the territory it occupies—the relation of
peoplehood, through which the group exercises self-determination—the two-tier
territorial account developed in this article can explain why annexation, even if beneficent,
is wrong—namely because, aside from the relation between a state and the territory over
which it has jurisdiction, there is a prior, normatively significant relation between a group
and the territory it occupies—a relation of peoplehood, which is the result of the group’s
long occupancy of the territory and through which the group exercises self-determination.
This two-tier territorial account thus provides the crucial conceptual piece currently
missing from choice theorists’ account of territory.
By highlighting the normative significance of occupancy and peoplehood, this two-tier

territorial account explains why annexation constitutes a violation of self-determination;
that is, it explains what makes annexation wrongful. Moreover, if annexation is rightly
condemned because it violates a group’s rightful exercise of self-determination in its own
territory—that is, it violates the annexed group’s valid territorial claim—the same rationale
49
supports a prima facie moral case in favor of secession for a secessionist group that has
over time developed a sustained relation of peoplehood in its territory, through which it
exercises self-determination. If this secessionist group is able to create or maintain
institutions to provide adequate protection and representation in its new state—that is, if
the new state is legitimate—then opposing secession would constitute a violation of the
secessionist group’s rightful exercise of self-determination and valid territorial claim, as in
the case of external annexation. Opposing secession would indeed turn the current, larger
state into a de facto annexer, unilaterally imposing its jurisdiction on a people that rejects
it. In other words, recognizing the normative significance of self-determination and of the
territorial claim it implies requires both condemning annexation as morally impermissible
and recognizing the prima facie moral permissibility of secession.
F. Conclusion: Crimea and the Question of International Institutions
This article has aimed both to provide a more accurate understanding of choice theories of
secession and to uphold their unique stance by revealing three crucial yet entirely
overlooked points: (1) The specific theoretical underpinnings of choice theories’ failure to
address the territorial question—that is, their focus on the level of the state and political
legitimacy; (2) the internally problematic implications of choice theories’ failure to address
the territorial question—that is, the inconsistency of their arbitrary focus on the self-
determination of only the secessionist group, and not the remainder group; (3) a possible
way forward through a territorial account based on self-determination—that is, this
article’s two-tier territorial account that focuses on both the level of the group and its
relation of peoplehood as well as the level of the state and its legitimate jurisdiction. This
article has argued that this two-tier territorial account allows us to condemn annexation
while inviting us to consider the moral plausibility of secession. In closing, two final
questions remain to be considered. First, what does this article’s territorial account tell us
about the case of Crimea, which has been characterized both as a case of wrongful
annexation and as one of rightful secession. Second, what does a prima facie moral case in
favor of secession mean for international law and international institutions?
While Crimea arguably meets the criterion of peoplehood in virtue of its particular status
within Ukraine—it has a history of cooperation and institutions through which it exercises
self-determination—it does not meet the criterion of legitimacy—that is, adequate
protection and representation. But even if it did, any plausible moral case for secession
49
It is a prima facie case because other considerations might override it. See, supra note 48.
previously requires a peaceable and transparent referendum, which by definition

precludes dubious hastiness, aggressive propaganda, and military occupation. The case of
Crimea does not meet this criterion.
The problem with the Crimean referendum is not where it took place, but how it took
50
place. The problem lies in the conditions under which the referendum occurred—which
were neither peaceable nor transparent—not in the fact that the referendum included
only the Crimean population, as opposed to the whole population of Ukraine. The two-tier
territorial account offered above suggests that the population of Crimea has over time
developed a sustained relation of social and political cooperation, through which it
exercises self-determination and which requires respecting its occupancy of that
territory—that is, a normatively significant relation of peoplehood, which gives the group a
51
valid territorial claim, should it want to secede. Recall that on this two-tier territorial
account, Ukraine’s jurisdictional right over Crimea is derivative and contingent on
considerations of legitimacy—adequate protection and representation. If the population of
Crimea finds that its interests are not sufficiently well represented by the state, it has the
right to seek external, rather than internal, self-determination. As mentioned above, the
normative significance of self-determination, together with the corresponding territorial
title to which it gives rise, justifies the condemnation of annexation. In other words, the
same reasons used against Russia’s annexation of Crimea apply equally to Ukraine’s
opposition to a peaceable and transparent Crimean referendum on secession: In both
cases, it would be a violation of a group’s rightful exercise of self-determination in its
territory.
Of course, advocating secession through a referendum, or democratically determining the

demos, raises Ivor Jennings’ oft-cited remark that self-determination is a “ridiculous” idea
52
“because the people cannot decide until somebody decides who are the people.” There
is indeed, to some extent, some circularity at play in the ideas of self-determination and
peoplehood, as several contributors to the present volume note in the context of
international law and of constitutional theory, respectively: Self-determination
presupposes the very self or people that is supposed to emerge from it; the constitution
50
See also, Malcolm MacLaren, “Trust the People”? Democratic Secessionism and Contemporary Practice, 16
GERMAN L.J. 631 (2015).
51
One might object that there are minorities within the Crimean territory that might not support the secession of
Crimea. See Brad R. Roth, The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention, 16
GERMAN L.J. 384 (2015); Yaniv Roznai & Silvia Suteu, The Eternal Territory? The Crimean Crisis and Ukraine’s
Territorial Integrity as an Unamendable Constitutional Principle, 16 GERMAN L.J. 542 (2015). See also, Oklopcic,
supra note 44. But the problem of “trapped minorities” is not specific to newly seceded polities; it is a reality that
many polities, old and new, have to face. Moreover, secession would alleviate, rather than exacerbate, the
problem. Secession indeed frees a minority from the old polity in which it was previously trapped. So a concern
for trapped minorities supports, rather than undermines, the case for secession. See MacLaren, supra note 50.
52
IVOR JENNINGS, THE APPROACH TO SELF-GOVERNMENT 56 (1956).
53
constitutes the people that constitutes it. Yet, neither logical nor chronological priority is
ultimately the issue. Rather, the issue is ultimately a normative one: peoples rightfully
exercising political self-determination. If what results from the mutually constituting
interaction between self and determination, or between people and constitution, are
institutions that track the interests of the people they are supposed to represent, then if
there is any circularity, it is virtuous rather than vicious. And the relevant self or people will
speak up to break the circularity if it becomes vicious rather than virtuous—that is, if it
runs counter to, rather than serves, the rightful exercise of political self-determination.
In other words, the normative significance of peoplehood that underlies the symmetry
between the case against annexation and the case in favor of secession also points to a
possible response to Jennings: The people should decide who the people should be. The
claims of colonized peoples, indigenous peoples, annexed peoples, and secessionist
peoples all show that the people is not only quite capable of, but also often justified in,
54
determining who the people should be. In other words, the answer to Jennings’ “puzzle”
might be as simple as Mill’s self-evident observation that “the question of government
55
ought to be decided by the governed.” In the case of secession, a peaceable and
transparent referendum in the secessionist territory is an attempt to do just that. Short of
meeting the criterion of a peaceable and transparent referendum, however, the case of
Crimea is more accurately captured as a case of wrongful annexation than as one of
rightful secession. Having answered the first question raised above, let us now turn to the
second one.
What does a prima facie moral case in favor of secession mean for international law and
international institutions? Given the complex specificity of each secessionist case, it would
be unwise to draw any general international legal conclusions from the prima facie moral
case derived from the territorial account defended in this article. The case of Crimea
provides a telling illustration of why extreme caution is in order—that is, why
institutionalizing a right of secession as a matter of international law would be much too
hasty. Still, two important qualifications are in order to clarify the relation between
normative theory and institutional reform: one theoretical, the other practical.
53
See sources cited supra note 51; MacLaren, supra note 50; Umut Özsu, Ukraine, International Law, and the
Political Economy of Self-Determination, 16 GERMAN L.J. 434 (2015).
54
This is not to say that one should ignore the normatively problematic self-serving motives that underlie the
rhetoric of self-determination used by some secessionist groups and their supporters or opponents. See Öszu,
supra note 53. But those can be countered or neutralized by requiring that certain conditions be met for
secession to be permissible—for example, a peaceable and transparent referendum, the viability of the
remainder state, fair terms of separation regarding economic and natural resources, etc.
55
John Stuart Mill, Considerations on Representative Government, in UTILITARIANISM, ON LIBERTY, CONSIDERATIONS ON
REPRESENTATIVE GOVERNMENT 392 (H.B. Acton ed., 1972) (1862). See also, MacLaren, supra note 50, at 634.
First, advocating caution with regard to the institutionalization of a right of secession does
not mean adopting Allen Buchanan’s methodological requirement, whereby the only
plausible type of normative theory of secession must be formulated within an institutional
framework. Buchanan indeed contends that normative theorizing about secession is
56
pointless unless it takes into account the international legal and institutional context:
“[O]ne cannot first determine a pure, noninstitutional right to secede and then, as a
57
separate task, determine whether institutionalizing it makes sense.” For Buchanan, the
existence of a moral right to secede is contingent on the moral justifiability of a legal right
to secede: Determining under what conditions secession is morally permissible first
requires determining how morally justifiable international legal norms would regulate
secession. Specifically, establishing a moral right to secede requires meeting at least three
criteria for institutional reform: (1) The likelihood of its adoption by the international state
system as a legal right—the criterion of “minimal realism;” (2) whether such a right would
be consistent with a morally progressive interpretation of key principles of international
law, such as territorial integrity or human rights—the criterion of “moral progressiveness;”
and (3) whether such a right might have problematic consequences when implemented—
58
the criterion of “absence of perverse incentives.” Buchanan then proceeds to show that
choice theories do not meet his criteria, and concludes that they are therefore
59
implausible.
Three separate points warrant consideration to address Buchanan’s claims. First, one
might challenge Buchanan’s methodological assertion that the moral right to secede must
be inherently institutional. Several authors have indeed underlined that the moral and
60
legal questions about secession are conceptually distinct. Second, however, even if one
grants the conceptual distinction between a moral and a legal right to secede, one might
still consider whether Buchanan’s criteria for institutional reform are nonetheless
compelling. Even if those criteria do not justifiably limit the moral permissibility of
secession, they might justifiably constrain the legal permissibility of secession. Third, one
might question Buchanan’s contention that choice theories fail to meet his criteria for
institutional reform. To address those three points, we must look at Buchanan’s criteria
and ask, for each criterion: (1) Is it compelling? (2) If so, is it met by choice theories?
Answering these questions will also shed light on (3) the aforementioned moral-legal
distinction.
56
Buchanan, supra note 5, at 32.
57
BUCHANAN, supra note 7, at 27.
58
Buchanan, supra note 5, at 42–44.
59
See id. at 44–54.
60
ALTMAN & WELLMAN, supra note 10, at 53–58; Daniel Weinstock, Constitutionalizing the Right to Secede, 9 J. POL.
PHIL. 182, 183 (2001).
Let us first assess Buchanan’s criterion of minimal realism. Imagine the antebellum South.
Would it be compelling to say that because slaveholders were overwhelmingly unlikely to
favor abolition as legal reform, the slave population therefore had no moral right to be
free? Or think of the urgent problem of global warming, which is disproportionately
affecting poorer, more vulnerable parts of the globe. Would it be compelling to say that if
wealthy industrialized nations are unlikely to adopt international mitigation treaties or
measures, then poorer nations have no moral right that global warming be addressed? The
answer in both cases is clearly “no.” The criterion of minimal realism, then, appears rather
dubious.
Buchanan would likely find these two examples unfair, because he is concerned with cases
where states seek to protect their legitimate interest, in a morally progressive way—
territorial integrity is necessary to provide adequate protection of human rights—rather
than with cases such as slavery or global warming, where states seek instead to protect
61
their illegitimate interests, in a morally regressive way. But note that in responding in this
way, Buchanan is turning away from the criterion of minimal realism, and relying on a
different criterion altogether: that of moral progressiveness, understood as requiring
adequate protection. In other words, Buchanan is shifting the point from an empirical,
procedural one—likelihood of being accepted—to a normative, substantive one—
legitimacy of interests. Thus what is ultimately doing the work in Buchanan’s argument is
the substantive requirement of adequate protection.
Let us focus, then, on the criterion of moral progressiveness, which requires adequate
protection. This does seem like a compelling criterion for institutional reform. But while
adequate protection might require the territorially bounded state, it does not provide an
argument in favor of preserving current states’ territorial borders or territorial integrity, as
62
Buchanan claims it does. What is needed for adequate protection is a territorially
bounded state, not this or that particular territorially bounded state. Adequate protection
is thus quite compatible with the creation of new states through secession, and hence with
the modification of current states’ borders. If this is correct, then choice theories do meet
the institutionally crucial requirement of adequate protection and of state legitimacy. As
we saw above, if the secessionist group is able and willing to protect human rights in its
new state, without undermining the remainder state’s ability to do the same, then
secession is consistent with Buchanan’s concern for the morally progressive requirement
of adequate protection, and by extension of state legitimacy. In other words, if what
matters is adequate protection, then the ability and willingness to provide it can be viewed
as necessary conditions to create a new state, rather than as sufficient conditions not to
break up an existing one. To deny this would be to beg the question in favor of remedial
61
Buchanan, supra note 5, at 49.
62
See id. at 47.
secession. Buchanan might respond that the present argument instead begs the question
in favor of non-remedial secession, by smuggling into the argument considerations of self-
determination that are absent from his, thereby facilitating the case for non-remedial
secession. But Buchanan’s argument for remedial secession implicitly, yet fundamentally,
63
relies on the normative significance of self-determination; hence this objection fails.
Let us now assess the criterion of absence of perverse incentives. As Daniel Weinstock
rightly notes, it is problematic to make the existence of a moral right contingent on the
potential consequences its exercise might trigger in the real world. To use Weinstock’s
example, we would not want to say that women do not have the right to walk by
themselves at night because doing so would expose them to a greater risk of attack by
64
others. This does not mean that women should not be careful when walking by
themselves at night. It might indeed be unwise to exercise the right in certain
circumstances. However, this does not mean that they do not have the right to walk by
65
themselves at night.
The existence of a moral right, then, depends neither on the potential consequences of its
exercise—the criterion of absence of perverse incentives—let alone on the likelihood that
it should ever be adopted as a legal right by the powers that be—the criterion of minimal
realism. Buchanan is mistaken to assume that whether a compelling case can be made for
a moral right to secede, or whether an agent has a moral right, depends on whether that
moral right should or could also be a legal right. Those are two distinct questions and
conflating them yields rather strange and unpalatable implications that are normatively
problematic.
Granting the aforementioned moral-legal distinction, then, might Buchanan’s criteria for
institutional reform nonetheless be compelling, and if so, do choice theories meet these
criteria? We saw that the criterion of minimal realism is problematic, and that Buchanan’s
way of solving the problem is to turn to the criterion of moral progressiveness and its
corresponding requirement of adequate protection. Adequate protection is a compelling
criterion for institutional reform, and we saw that choice theories meet this criterion. What
about the criterion of absence of perverse incentives? This criterion likewise seems like a
compelling criterion for institutional reform, and one that choice theories arguably meet. If
groups can secede without having previously suffered egregious violations of human
63
Amandine Catala, Remedial Theories of Secession and Territorial Justification, 44 J. SOC. PHIL. 74 (2013).
64
Weinstock, supra note 60, at 185.
65
Relatedly, the existence of a moral right does not depend on how easy or difficult it would be to realize that
right. If you are a millionaire, it might be very easy for you to give me $100, but that does not mean I have the
right to receive $100 from you. Conversely, if you hit me with your car and you have no insurance, it might be
very difficult for you to compensate me appropriately, but that does not mean that I do not have the right to
receive appropriate compensation.
rights, then presumably states will be more inclined to enter into political dialogue with
their minorities and to attempt to reach arrangements that will make them more likely to
66
stay than to exit.
To review the three main points of the first, theoretical clarification regarding the relation
between normative theory and institutional reform: Though the moral right to secede is
not inherently institutional, Buchanan still advances two compelling criteria for
institutional reform—moral progressiveness and no perverse incentives—which choice
theories meet. Does this mean that international law should recognize a general right to
secede after all? No. This brings us to the second, practical clarification regarding the
relation between normative theory and institutional reform.
Advocating caution with regard to the institutionalization of a right of secession does not
mean that international law cannot recognize the peaceful and stable success of past
instances of changes in state borders—for example, the secession of Norway from Sweden,
of Iceland from Denmark, of Montenegro from Serbia, or the partition of Czechoslovakia—
67
and hence the necessity of assessing each case on its own merits or demerits. Moreover,
even if international law does not recognize a general right of secession, international
institutions and actors still have an important role to play in arbitrating secessionist claims,
which will keep arising regardless of whether international law recognizes a right to
secede. The case of Crimea indeed provides a telling illustration of the crucial need for
international mediation in secessionist or irredentist conflicts. In other words, the complex
specificity of each secessionist case, at the same time as it tells strongly against the
institutionalization of a right of secession as a matter of international law, also urges
international institutions and actors to provide the mediation necessary to the adequate
protection of human rights and of peace, while recognizing the possibility and justifiability
of those cases of changes in state borders that do not pose a threat to such adequate
68
protection. The current international legal neutrality regarding secession might provide a
fitting framework for achieving these goals.
66
ALTMAN & WELLMAN, supra note 10, at 62.
67
Cf. Roth, supra note 51.
68
See Jure Vidmar, The Annexation of Crimea and the Boundaries of the Will of the People, 16 GERMAN L.J. 365
(2015); MacLaren, supra note 50.
Territorial Conflict and Territorial Rights: The Crimean Question

Reconsidered
By Ayelet Banai*
Abstract
This article focuses on contemporary theories of territorial rights in political and legal
philosophy and explores their implications for the case of Crimea, focusing on three main
accounts of territorial rights: Liberal nationalist, Lockean, and Kantian. The article advances
the legal-political account of the “people” and its territorial rights as a promising approach
to theorizing the corporate agents that have potentially valid territorial rights and claims.
While normative theory does not yield a single unequivocal judgment that identifies one
claimant as the solely justified territorial right-holder in Crimea, the application of general
principles of territorial rights theory can help identify the pertinent considerations for the
case, which clarify the normative implications of each potential resolution. While no party
has an absolutely just territorial claim to Crimea, this article offers a qualified defense of
the existence of a distinct “Crimean people,” defined by the distinct political history of
Crimea and its long-standing legacy of autonomous legal-political institutions, which may
constitute a shared political project for the culturally diverse population.
A. Introduction
1
Despite claims to the contrary, the recent secession of Crimea from Ukraine and its
subsequent incorporation into the Russian Federation find little justification in the
international legal norms of self-determination. Even if an international legal right of
2
peoples to self-determination exists outside of colonial contexts, it does not include a
general right to secede (i.e., the right to “external self-determination” in the form of
independent statehood). The doctrine of “remedial secession,” which defends a right to
secede as a remedy of “last resort” for sub-state groups that are subject to severe
*
Department of Government and Political Theory, School of Political Science, The University of Haifa. Haifa, Israel.
Email: abanai@poli.haifa.ac.il.
1
Anatoly Kapustin, Crimea’s Self-Determination in the Light of Contemporary International Law, 75 H EIDELBERG J.
I NT’ L L. 101 (2015).
2
A NTONIO C ASSESE , S ELF -DETERMINATION OF P EOPLES : A LEGAL R EAPPRAISAL , 37–66 (1995); DAVID RAIČ , S TATEHOOD
AND THE L AW OF S ELF -D ETERMINATION 226–42 (2002); Robert McCorquodale, Self-Determination: A Human Rights
Approach, 43 I NT’ L & C OMP . L. Q. 857, 860 (2012).
2015 Territorial Conflict and Territorial Rights 609
3
oppression, is not applicable to the Crimean case. First, according to the available
information, the kind of extreme repression that supports remedial secession is not
present in this case. Second, other measures by Russia to protect its nationals and ethnic
Russians in Crimea under Ukrainian jurisdiction—for example, pressing to achieve intra-
state protection for the population concerned—are necessary, before a measure of last
4
resort can be justified.
Beyond the legal norm, the moral-normative question remains open. Especially in the
5
highly contested issue of the meaning of self-determination, it may be worth exploring
normative considerations beyond the letter of the law. After all, the notion of peoples’
self-determination was no more than a political ideal a century ago, before it was codified
6
as an international legal norm. International law presently faces great challenges in the
realm of application and enforcement of its most basic principles. These challenges, to be
sure, ought to receive priority over the development of new and nuanced norms.
Hopefully, conceptual clarification can contribute to practical application.
This article focuses on contemporary theories of territorial rights in political and legal
philosophy and explores their implications for the case of Crimea. “Territorial right” is
generally understood as jurisdiction—the right to make, adjudicate, and enforce laws—
over a geographical domain coupled with control over access to the territory and its
natural resources. David Miller defines territorial right as a tripartite concept consisting of
(1) “[t]he right of jurisdiction, that is, the right to make and enforce law throughout the
territory in question”; (2) the right of a territory’s resources—the right “to control and use
the resources available in the territory”; and (3) “the right to control the movement of
7
goods and people across the borders of the territory.”
Territorial right, in other words, generally connotes familiar norms of sovereignty in post-
8
1945 international law, in liberal-leaning interpretations. Theories of territorial right seek
to accomplish a twofold task: First, to justify territorial right in general—namely, explain
3
Theodore Christakis, Self-Determination, Territorial Integrity and Fait Accompli in the Case of Crimea, 75
H EIDELBERG J. I NT’ L L. 75, 82–84 (2015).
4
See A LLEN BUCHANAN , JUSTICE, L EGITIMACY AND I NTERNATIONAL LAW (2004).
5
Hurst Hannum, Rethinking Self-Determination, 34 VA. J. INT’L L. 2 (1993).
6
A NTONIO C ASSESE , S ELF -DETERMINATION OF P EOPLES , 11–36 (1995); DAVID RAIČ , S TATEHOOD AND THE LAW OF S ELF -
DETERMINATION 171–88 (2002).
7
David Miller, Territorial Rights: Concept and Justification, 60 P OL . S TUD. 252–53 (2012). This definition is not
beyond dispute but is generally accepted.
8
See JEAN C OHEN , GLOBALIZATION AND S OVEREIGNTY : R ETHINKING L EGALITY, LEGITIMACY , AND C ONSTITUTIONALISM ,
223–65 (2012).
why the parceling of the world to geographically bounded sovereign units is morally
defensible; and second, to develop guidelines that address the particularity problem—
which group, individual, or institution should hold territorial rights in which particular
territory. Put more pragmatically, this twofold task addresses the question of whether the
currently existing territorial holdings of particular right-holders—individual states and
peoples—are justifiable.
In the following sections, three main accounts of territorial right are examined, and in the
final section their implications for the case of Crimea are explored. These three accounts
are (1) liberal nationalism, which, despite known conceptual flaws, remains prominent in
9
both theory and practice; (2) the Lockean theory of territory, which follows John Locke’s
10
natural law theory of property; and (3) the Kant-inspired theory of territorial right, rooted
11
in Immanuel Kant’s Doctrine of Right. An important difference between the theories is
their conception of the right-holder as an ethno-cultural nation in liberal nationalism
versus a “people” defined primarily in legal-political terms, according to the more recent
philosophical developments proposed by the Lockean and Kantian perspectives.
This article argues that liberal nationalism makes a valid prudential point for taking into
account the aspirations of cultural nations when determining and revising territorial
jurisdictions. However, at the moral-normative level, liberal nationalism’s view that the
cultural “nation” is a uniquely appropriate unit of political self-determination falls short.
The legal-political “people” is a more promising approach to theorizing the corporate
12
agents that have potentially valid territorial rights and claims. This conception of the
people is explained and defended below against the two standard objections of
indeterminacy and subjectivity. The indeterminacy objection submits that the idea of a
people is too vague, whereby a plausible distinction and judgment about who is a people—
so as to be a subject and right-holder of self-determination—is not possible. The
subjectivity objection asks why the self-identification and subjective sense of affiliation of
individuals to groups known as peoples matter normatively, specifically in the context of
9
See DAVID MILLER , ON NATIONALITY (1995); MARGARET MOORE, T HE E THICS OF NATIONALISM (2001); NATIONAL S ELF
DETERMINATION AND S ECESSION (Margaret Moore & Allen Buchanan eds., 1998); T AMAR MEISELS , T ERRITORIAL
RIGHTS (2005).
10
See C ARA NINE , GLOBAL JUSTICE AND T ERRITORY 26–44 (2012); Cara Nine, A Lockean Theory of Territory, 56 P OL .
S TUD. 148 (2009).
11
Anna Stilz, Nations, States, and Territory, 121 E THICS 572, 580–84 (2011); Anna Stilz, Why Do States Have
Territorial Rights?, 1 I NT’ L T HEORY 185, 198–206 (2009).
12
Corporate agent refers to a collective agent composed of individuals acting jointly. Moral agency is traceable to
individuals, but in the case of territorial right the agent is a very large group of individuals, or individuals acting in
virtue of their affiliation to the group. I use the term corporate agent to connote a collective agent that is
substituted by individuals. On collective agents on this type, see C HRISTIAN LIST & P HILLIP P ETTIT, G ROUP A GENCY:
T HE P OSSIBILITY , D ESIGN , AND S TATUS OF C ORPORATE A GENTS 19–41 (2011).
territorial rights and political borders. In the case of Crimea, the difference between nation
13
and people emerges in practice. Liberal nationalism would recognize in this case three
national groups, distinct in their ethnic origins, language, and culture—Russian, Ukrainian,
and Tatar. In distinction, the people-oriented perspective opens the possibility that there
exists a “Crimean people”—defined by the distinct political history of Crimea and its long-
standing legacy of autonomous legal-political institutions—that may constitute a shared
political project for the culturally diverse population.
The application of the main theoretical perspectives on territorial rights to the case of
Crimea helps illustrate the merit and limits of the theories. Normative theory does not
yield a single unequivocal judgment that identifies one claimant as the solely justified
territorial right-holder in Crimea. However, the application of general principles of
territorial rights theory can help identify the pertinent considerations for the case, and
may clarify the normative implications of each potential resolution. Moreover, it is worth
noting that no party has an exclusive and absolutely just territorial claim to Crimea.
Subsequently, different resolutions can be morally equivalent, making room for pragmatic
considerations of feasibility.
B. Liberal Nationalism and Territorial Right: The Importance of Being Prudential
Despite the apposite objections to liberal nationalism, it remains a prominent perspective

on borders and territory both in theory and in practice. Territorial right, in this view, is
justified in general by the value of national self-determination. The cultural nation is seen
as a uniquely appropriate unit of political self-government for instrumental, normative,
and conceptual reasons. Instrumentally, the sense of affiliation and the solidarity among
fellow nationals helps sustain democracy and social justice: “[I]t provides the setting in
which ideas of social justice can be pursued. . . it helps to foster the mutual understanding
14
and trust that makes democratic citizenship possible.” Moreover, proponents of liberal
nationalism argue for the pertinence of national self-determination to individual wellbeing.
The political autonomy of the cultural-national community is instrumental to individual
autonomy, freedom, and dignity. Will Kymlicka famously describes societal cultures as a
context of choice that enables individuals to exercise their personal autonomy by giving
15
meaning to the possibilities open to them. He further draws an analogy between the
individual that chose to leave their culture of origin and a monk that vowed to live a life of
13
Following the terminology of the theories explored here, “nation” refers to the cultural and ethno-cultural
nation, and “people” to the legal-political people. Other definitions and conceptions both of nation and people
are possible. This terminology is employed in the interest of clarity.
14
MILLER, supra note 9, at 185; see also Avishai Margalit & Joseph Raz, National Self-Determination, 86 J. P HIL . 439
(1990).
15
W ILL K YMLICKA , MULTICULTURAL C ITIZENSHIP : A LIBERAL T HEORY OF MINORITY RIGHTS 84, 165 (1996).
16
scarcity. Note that the liberal nation is a historical community that has distinct and
identifiable cultural features, but it is not a collective ontological being that exists
17
independently of the sympathies and subjectivities of the individuals that comprise it.
Conceptually, proponents of liberal nationalism argue that there is a very close

connection—indeed almost by definition—between individuals’ affiliation to their cultural
nation and their aspiration to self-government. They suggest that the aspiration to self-
government nearly inevitably corresponds to cultural affiliations. Moreover, proponents
argue that it is either impossible or undesirable for state institutions to be devoid of any
national-cultural characteristics because these institutions will inevitably reflect a
particular national identity. Subsequently, on grounds of fairness and non-discrimination,
states ought to institutionally recognize and accommodate the national groups within their
territory. Liberal nationalism’s basic proposition with respect to territorial borders and self-
determination is “one nation, one territorial-political unit”—a state or an autonomous
region within it. In reference to the practice, liberal nationalists point out that many
successful liberal democracies are nation states—a reality that was reinforced in Europe in
the 1990s when democratization processes were connected to an increase in the number
18
of states constituted by the logic of the cultural nation-state.
Thus, national self-determination—namely, the idea that cultural nations are uniquely
appropriate units of political self-government—is the general justification of territorial
right in liberal nationalism for instrumental, normative, or conceptual reasons. Nations
require an identifiable geographical domain in which to exercise their self-government,
where the political and legal institutions that represent their members hold the
jurisdiction. With respect to the particularity problem—which specific nations have
territorial right over what geographical domains—liberal nationalism puts forth the
principle of “homelands.” As a rule, national identities contain an attachment to a
homeland. Individual nations come to acquire territorial rights over the geographical
domain that is their homeland through interaction with the land over generations that
invests material and symbolic value in it. Having shaped and improved their territory over
time, creating places of symbolic and material value for them, nations gain territorial rights
over the geographical domains that are their homelands.
Liberal nationalism is the subject of various criticisms that reanimate a time-honored

debate in liberal, republican, and democratic political thought about the relationship
16
Id. at 86.
17
MILLER, supra note 9, at 4–6; see also Y AEL T AMIR, L IBERAL NATIONALISM 35–56(1993).
18
Evidently some of the seceding states remain internally multinational, or multi-ethnic, as in the case of Bosnia-
Herzegovina, or have considerable national minorities, like Estonia. Others like the Czech Republic are uni-
national after the secession from Czechoslovakia.
between the nation and modern democracy. Is the liberal nation a near-necessary
condition for the realization of democracy as a form of government, and for the pursuit of
such values as freedom, equality, and individual autonomy? Or is it rather the case that the
nation is a tenacious obstacle to democracy at odds with the essentially universalistic
liberal and republican morality? In modern European history, the idea of the nation made
important appearances for both equal rights and the notion of a government “by the
people” within the context of struggles against absolutism and arbitrary hereditary rule.
19
Such was its role in the French Revolution and in the 1848 uprisings across the Continent.
Within the boundaries of the nation, the promise of equality among all citizens before the
law and of self-government by the people appeared on the European and international
stage. During the First World War, when President Woodrow Wilson incorporated self-
determination into the war aims of the United States, the ideas of government by consent
of the governed and respect for national aspirations were still being used interchangeably.
For example, a 1918 President’s address to Congress stated, “National aspirations must be
respected; peoples may now be dominated and governed by their own consent. “Self-
determination” is not a mere phrase; it is an imperative principle of action, which
20
statesmen will henceforth ignore at their peril.”
At the same time, the principle of nationality, when applied to determine state-borders in
Europe over the past two centuries, has also given rise to violent conflicts, civil wars, and
massive forced migrations of populations. Poland, Czechoslovakia, Yugoslavia, Greece, and
Turkey are some of the cases of formerly multi-ethnic or multination countries that
21
violently transformed into nationally homogenous territorial units. Hannah Arendt
remarks that after the end of the First World War,“[s]ince the Peace Treaties of 1919 and
1920, the refugees and the stateless have attached themselves like a curse to all the newly
22
established states on earth which were created in the image of the nation-state.”
The purpose of the current discussion is neither to resolve nor to rehearse this important
and voluminous debate, which likely has no unequivocal conclusion. The aim is rather to
19
The events of 1848–49 and the political thought related to them receive little, if any, attention in contemporary
scholarship, because they are considered a failure. However, historian Jonathan Sperber reminds us that they
were “the largest, most widespread, and the most violent political movement of nineteenth century Europe,”
reaching “from the Atlantic Coast to the Carpathians [and] from the Mediterranean to the Baltic.” JONATHAN
S PERBER, T HE E UROPEAN R EVOLUTIONS : 1848–1851 3 (1994).
20
Woodrow Wilson, Address to the United States Congress (Feb. 1918), in C ARLILE MACARTNEY , NATIONAL S TATES
AND N ATIONAL MINORITIES 189–90 (1934).
21
No moral judgment is meant here about blameworthy parties in this process, nor on whether claims about
historical injustices are relevant. Some commentators tie forced migration and violence related to ethno-national
conflict in Europe together with the violence, extermination, and expulsion of National Socialism. This is a
conceptual error and an unfair critique of liberal nationalism.
22
HANNAH ARENDT, T HE ORIGINS OF T OTALITARIANISM 290 (2004).
explore liberal nationalism’s specific implications for the problem of territorial disputes.
Proponents of liberal nationalism today seek to keep the darker sides of nationality at bay
through the distinction between liberal and illiberal nationalism, associating the history of
violence with the latter and the promise of liberal democracy with the former. Still, the
theory remains liable to two objections that deserve particular attention because they
affect the very rationale of nationality as a principle of territorial borders. The two
objections are (1) the “national determination” objection and (2) the territoriality
objection. The gist of the former objection is that the relationship between the cultural
nation and the self-determining political unit is not as straightforward as liberal
nationalism suggests. Some democracies include more than one cultural-national group
among their citizenry and are also reasonably successful in the lack of an overarching
cultural-national identity. Furthermore, not all cultural nations seek political unification
and independence, or when asked—for example, in a referendum—they turn out to be
internally divided on the issue. The latter objection points at the disparity between cultural
identities and territorial units. In contrast to what is suggested in liberal nationalism, cases
of mismatch between cultural-national and territorial boundaries are frequent. They
23
cannot be bracketed by the theory as exceptions.
I. Beyond National Determination
National determination is the supposition that “political loyalties are pre-determined by

24
culture and descent”; that affiliation to a cultural group determines—as a rule—political
aspirations. The problem with the supposition is not that it is entirely false—a host of cases
can be cited in its favor—but that it is a gross over-simplification. Regrettably, and
curiously, we do not have systematic data about the empirical relationships between
individuals’ cultural identities and their political affiliations and aspirations. Evidence can
be only cautiously drawn, and with limited capacity for generalization, from available cases
and indications. If we take the making of Europe’s contemporary political map as the field
of inquiry, one of the early and momentous liberal national movements emerged in
Germany in the 1830s and culminated in the revolutionary national constitutional
assembly of 1848 in Frankfurt. There, elected delegates from across the German
Confederation gathered to compose a constitution to unify the German people into a
liberal nation-state.
Still at the peak of a liberal national revolutionary moment, the distinctions between
national and political loyalties are expressed in the assembly’s deliberations. For example,
delegates from Austria gave priority and pledged allegiances to their multination country,
over the possibility of separating the German provinces from the rest, in order to
23
See Zoran Oklopic, Introduction: The Crisis in Ukraine Between the Law, Power, and Principle, 16 German L.J.
350 (2015).
24
MACARTNEY, supra note 20, at 278.
25
incorporate themselves into a unified Germany. Franz (František) Palacký, a prominent
early advocate of Czech nationalism, declined the invitation to participate in the assembly,
26
on grounds of not being German. At first sight the refusal appears to reinforce liberal
nationalism’s proposition today regarding the tight, if not inherent, connection between
cultural-national and political identities. A second look at Palacký’s letter reveals a more
interesting picture. While he does not consider himself German, he does not self-identify
with another national-cultural group, and describes himself as “Bohemian of Slavic
27
descent.” Bohemia is a legal-political unit, formerly an autonomous kingdom that
consisted, at the time, of Slavic and German populations. As an alternative to incorporation
into the unified Germany, Palacký’s desired political plan was not one of national
independence but of a union of “a number of peoples, different in their descent, language,
history and costume” that inhabit the south-east of Europe along the borders of the
Russian Empire, including “Slavs, Wallachs, Magyars, and Germans, as well as Greeks, Turks
and Shqiptars.” This “vital union of peoples” was necessary for its members to “resist in
perpetuity the powerful neighbor from the East,” and—from a mid-nineteenth century
perspective—was embodied in Austria: “In truth, if the Austrian Empire had not long been
in existence, in the interest of Europe, in the interest of Humanity itself, one would hasten
28
to create it.”
Liberal nationalism, before its defeat, was not a theory of ethno-cultural political borders,
but one that plainly saw the difference between ethno-cultural and political loyalties,
assigning value and seeking expression for both. Moreover, in the rare cases in which
people were asked in a referendum about their preferences to settle border-disputes, the
outcomes did not always match cultural-national affiliations. The Peace Treaties that
concluded the First World War stipulated plebiscites to determine sovereignty over three
regions along the German-Polish border in Silesia, and to settle the border in the
Klagenfurt region, disputed between Austria and the newly established Yugoslavia (then
25
E.g., Titus Mareck, in S TENOGRAPHISCHER B ERICHT ÜBER DIE V ERHANDLUNGEN DER DEUTSCHEN CONSTITUIRENDEN
NATIONALVERSAMMLUNG ZU F RANKFURT A.M. IV: 2892, 2894 (Franz Wigard ed., 1848–49) [hereinafter StB]; and
Adolf Wiesner, in S T B, IV: 2784–85. These declarations of loyalty to Austria did not come from royalists, but from
the radicals. Also from the Left came the opposition, led by Robert Blum, to inclusion of the German delegates
from the Duchy of Posen, because this territory, though under Prussian rule, was not a part of the German
Confederation. See F RANK E YCK, T HE F RANKFURT P ARLIAMENT 1848–49, at 275–83 (1968).
26
Karl Marx, ever unimpressed by the appeal of nationalities, describes Palacký in his newspaper reports on the
Frankfurt Assembly: “The chief champion of the Tschechian nationality, Professor Palacký, is himself nothing but a
learned German run mad, who even now cannot speak the Tschechian language correctly and without foreign
accent.“ K ARL MARX , REVOLUTION AND C OUNTER -R EVOLUTION IN GERMANY VIII (1852), available at
https://www.marxists.org/archive/marx/works/1852/germany/ch08.htm.
27
H.A. WINKLER, GERMANY: THE LONG ROAD WEST (2007).
28
F RANZ P ALACK ý, ÖSTERREICHS S TAATSIDEE 82, app. A (1866). For this translation, excluding the final sentence, see
E LISABETH W ISKEMANN , C ZECHS AND G ERMANS : A S TUDY OF THE S TRUGGLE IN THE H ISTORIC P ROVINCES OF BOHEMIA AND
MORAVIA 23 (1938).
the Kingdom of Serbs, Croats and Slovenes). The plebiscites took place in 1921 and 1920
29
respectively. In both cases voters opted against their cultural-national affiliation: In the
Silesian plebiscites, the majority of the constituency was Polish according to native-
language criterion, but the majority of votes were for Germany. In the plebiscite on
Klagenfurt, the large majority of the constituency was Slovenian, but the majority of votes
30
were for Austria. These long forgotten events might appear today as mere curiosities, but
they represent the important early period of liberal nationalism that helps understand
liberal nationalism today.
It does not follow from this analysis that contemporary proponents of liberal nationalism
should simply embrace the former ideals of multination states. Indeed it would be a
mistake to ignore both failed attempts to realize these ideals, and the ensuing ferocity of
ethno-national conflicts. Rather, in view of its history, present day liberal nationalism is
best understood and is at its strongest as a “negative” normative perspective of post-
failure; in other words, liberal nationalism is most useful as a prudential norm that obtains
validity in view of the immense challenges to realizing the early ideals and the destructive
outcomes associated with unsuccessful attempts. In contemporary liberalism, a norm of
this kind can be described as a non-ideal theory, which takes into account non-compliance
of actors in the existing situation, while keeping a normative-critical distance towards a
wrongful reality. From this perspective, the error of present-day liberal nationalism is in
presenting itself as a positive ideal theory of political borders, drawing on untenable
arguments about the conceptual and normative near-inherent connection between
political self-determination and ethno-cultural identities. The prudential perspective can
keep the early ideal of multi-nationalism on the horizon and at the same time take into
consideration the dynamics of ethno-national conflicts that are sometimes eased and de-
escalated through uni-national self-determination.
II. Nationalities and Territories
The second objection submits that liberal nationalism is ill equipped to address cases
where national identities and territorial borders do not overlap, and that these cases
cannot be bracketed by the theory as exceptions. Cases often emerge in which a territory
contains more than one cultural-national group and subsequently competing claims to
national self-determination. Crimea is an example of a case where national groups—the
definition of each is itself contested—make competing claims to the territory or to parts of
it. Once more, if we take the making of Europe’s contemporary map as a field of inquiry,
we are soon to discover that there is nothing unusual about the Crimean case in this
regard. More often than not, states and territorial units seceding from an imperial reign to
29
For a detailed survey and documentation of the plebiscites, see S ARAH W AMBAUGH , P LEBISCITES S INCE THE W ORLD
W AR: W ITH A C OLLECTION OF OFFICIAL DOCUMENTS (1933). See also Hannum, supra note 5, at 5–7.
30
W AMBAUGH , supra note 29, at 198–252.
independence comprise of culturally-nationally diverse populations with conflicting

political aspirations. Recall that to justify and evaluate claims to territories, liberal
nationalism proposes the criterion of interaction with the territory over the generations,
and its improvement through investment of material and symbolic value. Applying this
principle then yields patchworks of territorial rights and layers of overlapping claims,
31
whereby no national group has a unique claim to a contiguous territory. Furthermore,
liberal nationalism does not fully explain how the notion of a culturally defined nation
anchors the full bundle of territorial rights. As Margaret Moore writes, theories of liberal
nationalism “do a good job, therefore, of explaining a group’s ‘attachment’ to a particular
geographical area, but are weaker in explaining why that cultural group is entitled to a full
32
set of territorial rights.”
To address challenges of this kind, David Miller develops the notion of “debatable lands.”
There, more than one national group has a valid territorial claim; the theory recommends
institutions that can accommodate this diversity. Because an overarching national identity
is absent, national liberal democratic institutions can be expected to be weaker, devolving
33
authority and autonomy to the sub-state national groups. Conceptually solid, this
approach possibly undermines the very principle of national self-determination. If, as
suggested above, territories contested in this sense are not the exception, liberal
nationalism today faces three uneasy normative possibilities: (1) Advocate the desirability
of national self-determination, implicitly condoning the historically violent transformation
34
of culturally and nationally diverse states towards homogeneous territorial units; (2)
advocate for the desirability of multi-nation states, wherein the theoretical foundations of
national self-determination are by and large abandoned, because the argument for a tight
connection between cultural nationality and political self-determination ought to be
revised; and (3) advocate for the desirability of national self-determination, applicable only
for those cases where, by some coincidence of history, national and territorial boundaries
overlap.
The restatement of liberal nationalism as a prudential norm may propose a way out of this
conundrum. This perspective can keep the early normative ideals of early liberal
nationalism on the horizon—namely of multination states and their distinction between
cultural and political loyalties—without naively and hazardously prescribing policies that
31
See generally, Zoran Oklopcic, The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond
Territorial Rights and Constitutional Paradoxes, 16 GERMAN L.J. 658 (2015).
32
Margaret Moore, Which People and What Land? Territorial Right-Holders and Attachment to Territory, 6 I NT’ L
T HEORY 121, 122 (2014).
33
David Miller, Debatable Lands, 6 I NT’ L T HEORY 104 (2014).
34
As noted above, the point is not to assign moral blame but to take the relevant history of an idea into account.
For a detailed overview, see MACARTNEY, supra note 20.
have repeatedly and violently failed. As a prudential norm, liberal nationalism proposes the
following: Nations and national identities are not, as such, morally objectionable. They are
important insofar as they are valuable for the individual members that compose them and
are attached to them. There is no intrinsic moral reason for political self-determination to
track nationalities. In view of the often violent dynamics of ethno-national territorial
conflicts within multination states, national self-determination may propose a “lesser-evil”
perspective among non-ideal possibilities.
C. States, Peoples, and Territorial Rights: Lockean and Kantian Theories of Territory
Recent developments in scholarship propose theories of territorial right inspired by the

political thought of John Locke and Immanuel Kant. They are sometimes labeled the
“functionalist accounts,” because the justification they provide for territorial rights draws
35
primarily on the function that the territorial political authority fulfills. The Lockean
account appeals the role of the authority in fulfillment of basic human needs and the
legitimate establishment of minimal justice in the territory. The Kantian account highlights
the establishment of a system of rights and justice in the territory—particularly, property
rights. As noted above, the twofold task of territorial rights theories is to (1) justify the
institution in general and (2) address the particularity problem of identifying specific
36
legitimate right-holders in particular territories. With respect to the first, there is overlap
between the two theories. At the same time, they reflect the basic differences between
Locke and Kant on rights in the “state of nature” and the role of the legal-political authority
in the stipulation and protection of basic civil rights (e.g., property). On the Lockean
account, the role of the political authorities is primarily in coordination and stable
enforcement of rights that can be stipulated and imperfectly upheld in the state of nature,
while from the Kantian perspective the stipulation itself and promulgation of property
rights require a legal-political authority that can constitute an omni-lateral will. While
these issues are philosophically fascinating, they are of less consequence for the current
discussion. Both perspectives are likely to yield similar judgments as to which legal-political
authorities in the real world fulfill their legitimizing functions and subsequently live up to
the general justification of territorial rights. Let me, therefore, briefly recapitulate both
positions, before proceeding to the issue of right-holders that is of more consequence for
the Crimean case.
The Lockean theory of territory is analogous to Locke’s natural law theory of property. To
justify territorial right, the argument appeals to the basic universal values of natural law
35
Liberal nationalism too has an instrumental element insofar as the theory appeals to the goods that nationality
allegedly helps sustain—trust and democratic cooperation. However, the crux of the justification of territorial
right is anchored in the value of national self-rule. Territorial right, on this view, is required for the nation to
govern itself.
36
Nine, supra note 10, at 26–27; Stilz, Why Do States Have Territorial Rights, supra note 11, at 187–88.
theory: The preservation and flourishing of human kind. Subsequently territorial right is
justified in general because it fulfills two main functions instrumental to the preservation
and flourishing of human kind. These are the fulfillment of basic human needs and the
establishment of minimal justice in the territorial domain, including the legitimate exercise
of coercive power in the adjudication and enforcement of law. Cara Nine draws on
capability theories for an account of basic human needs—of what it means for human
beings to be preserved and flourish—from physical security, through access to means of
subsistence and healthy human relationships, to a measure of political participation that
37
influences the circumstances under which one lives. A legitimate territorial authority
enables the coordination on a large scale of the complex economic and social activities
that are required for the fulfillment of the basic needs. In an analogy to the Lockean theory
of property, territorial political authority is justified primarily as a response to the
challenges of coordination and of enforcement of rights. The Kant-inspired theory of
38
territory draws on Immanuel Kant’s Doctrine of Right. On this view, the function of
territorial right—namely, the jurisdictional authority to make, adjudicate, and enforce laws
over a geographical domain—is the establishment of a system of rights and justice, in
particular a system of property rights. According to Kant, the political-legal authority is
required for the very stipulation of property rights, not merely for coordination and
enforcement of rights that, according to Locke, exist already in the “state of nature.” For
the most part, this difference between the approaches is philosophical. In the real world,
where there is no “state of nature,” the legitimizing function of the political authority is
39
equivalent.
I. The Problem of Right-Holders: The “People” Conundrum
In view of the general justification of territorial right, which appeals to critical functions
that the territorial authority fulfills, the appropriate right-holders are expected to be those
in a position to best fulfill said functions. Yet both theories bring the value of self-
determination into their perspectives on the problem of right-holders. Nine identifies the
self-determining people as a uniquely appropriate holder of territorial rights because of
40
the capacity of this corporate agent to govern itself—namely, its members—legitimately.
According to Stilz, legitimate states, rather than peoples, are the primary holders of
37
Nine, supra note 10, at 30–34.
38
See Stilz, Why Do States Have Territorial Rights, supra note 11, at 198–200; Stilz, Nations, States, and Territory,
supra note 11, at 580–82; see also ARTHUR RIPSTEIN, FORCE AND FREEDOM: KANT’S LEGAL AND POLITICAL PHILOSOPHY 145–
81 (2009). For Kant’s discussion of the state of nature, the move to the civil state, and the nature of the state, see
Immanuel Kant, Part II: Metaphysical Principles of the Doctrine of Right, in THE METAPHYSICS OF MORALS 41, 44–49.
39
For John Locke’s conception of the state of nature, see John Locke, TWO TREATISES OF GOVERNMENT 285–446
(Peter Laslett ed., Cambridge Univ. Press 1988).
40
Nine, supra note 10, at ch. 3.
territorial rights. The legal-political authority is necessary for the exercise of territorial
rights and the legitimate state is one that fulfills the functions that justify territorial rights
in general. But peoples—formed into a corporate agent through cooperation under shared
political institutions—hold residual territorial rights, in case of state breakdown—due, for
example, to a war or a revolution. This residual right consists of the prerogative of the
people to re-establish their own state, and not be incorporated into another state—even if
that state is legitimate in that it fulfills the necessary functions in the domains of rights and
41
justice.
The argument for self-determining peoples as right-holders maintains that they have the
unique feature of agreement among their members to jointly govern themselves.
Therefore, they are capable of exercising legitimately coercive jurisdictional power over
themselves. The initial targets of this argument are individualist-cosmopolitan positions
that deny altogether the standing of political collectives in theories of international rights
42
and justice. While valuable in this regard, the argument for self-determining peoples as
holders of territorial rights is subject to the familiar objections and challenges from within
the scholarship on self-determination. Such challenges particularly refer to how to
determine who is a “people” and to explain why the subjective self-identifications of
individuals with a people matter normatively for the allocation of territorial rights. The
argument for legitimate states rightly emphasizes the importance of the legal-political
component in the conception of the people as a corporate agent that holds territorial
rights. The question, however, persists why are the subjective self-identification of
individuals with a “people” normatively important? Why do they justify residual territorial
rights, namely the prerogative of the “people” to (re)establish its own legitimate state?
These long-standing objections to the notion of peoples as the subjects of political self-
determination—and subsequently as holders of territorial rights—can be labeled the
indeterminacy and subjectivity objections.
Before exploring these issues in more detail, it is important to clarify in which sense the
Lockean and Kantian perspectives propose an alternative to liberal nationalism. As we have
seen above, one of liberal nationalism’s main challenges is to explain the connection
between national-cultural identities and political self-determination—namely, the
exercising, or aspiration to exercise, self-government in the form of independent
statehood or territorial autonomy. One line of objections to liberal nationalism endorses
an individualist-cosmopolitan perspective that rejects the moral standing of collective or
corporate agents—national or otherwise—in a theory of international rights and justice.
Only freestanding individuals are then units of moral concern. Self-determination is, in
general, at odds with these varieties of cosmopolitanism, due to a presumed conflict with
41
Stilz, Nations, States, and Territory, supra note 11, at 580.
42
E.g., Robert Goodin, What Is So Special About Our Fellow Countrymen?, 98 E THICS 663 (1988); see Simon Caney,
Cosmopolitanism and the Law of Peoples, 10 J. P OL . P HIL . 95 (2002).
moral universalism. A second kind of alternative to liberal nationalism does not contest the
value of self-determination and the associated international political orders of territorially
bounded, self-governing polities. The objective here is inter alia to rethink the kind of
collectives or corporate agents that have a valid normative claim to political self-
determination—namely, to self-government. The Lockean and Kantian theories of territory
fall within this latter category. They propose legal-political oriented perspectives on the
subjects of self-determination—states and peoples. The former line of objections is
bracketed here. In the following section, the legal-political oriented perspective on peoples
is explored as a more promising approach to the subjects of self-determination than liberal
nationalism’s cultural nation.
II. Political Self-Determination and the “People”
The problem of defining and identifying peoples as subjects of self-determination is not

new. It has no perfect conceptual and theoretical answer, while in practice it is often easy
to know a people when we see it. Subsequently, the theory assumes a modest objective of
developing appropriate conceptual guidelines to the problem, and to help clarify possible
solutions. Although the legal-political approach is better equipped than liberal nationalism
to achieve this task, a preliminary clarification is in order. The legal-political approach, as
defended in contemporary theories, seems to include more than one position: Kantian
state-oriented and the Lockean people-oriented conceptions, as well as the “peoplehood”
43
conception developed by Margaret Moore. The working hypothesis for the discussion
here is that a tentative agreement is identifiable—or can be manufactured—between the
44
different perspectives, so that they can be presented and analyzed jointly. Call this joint
conception of the people, where the perspectives converge, the “political people.”
The political people is a very large group of individuals, sufficiently large to meet the
viability condition, comprised of individuals that have a shared sense of affiliation to that
group. The sense of affiliation is connected to particularistic properties, which pertain
directly to its joint political-legal-institutional spheres. Like the nation, a political people
typically has identifiable particular attributes. While there is no expectation for uniformity
and homogeneity among all members, there is an overlap that informs an inter-subjective
sense of affiliation. Unlike the nation, these commonalities are not primarily connected to
cultural, ethnic, or other pre-political contents and identities. Rather, they are connected
to a joint political project, or a political identity, pertaining directly to the public, political,
45
and legal spheres. The materials of which the projects and associated identities are made
43
Moore, supra note 32.
44
See Ayelet Banai, The Territorial Rights of Legitimate States: A Pluralist Interpretation, 6 I NT’ L T HEORY 140
(2014).
45
In distinction from the arguments in constitutional patriotism, the particularities are not seen merely as
incidental varieties of universalism, but as subjectively valuable properties of the group.
include, for example, political histories, values and symbols, public languages, legal and
institutional traditions and methods, and specific place-related experiences. To be sure,
these ingredients sometimes overlap with the content of national identities. For example,
a public language can be a feature of specific political and public institutions as well as a
feature of a national identity. However, the political and national perspectives will differ on
the meaning, status, terms of inclusion, and other policies concerning the public language.
Political peoples are constituted by the particularities that pertain directly to political and
public institutions, and thus differ from the cultural distinctiveness that national identities
include. Moore defines three conditions in this context, for a group of individuals to be a
people:
(a) [T]here is a shared political commitment to establish

rules and practices of self-determination on the part of
a wide majority of members, (b) they have the political
capacity to establish and sustain institutions of political
self-determination, and (c) they possess an objective
history of political cooperation together, through, for
example, state or sub-state institutions, or in a
46
resistance movement.
In this context, “self-determination” means self-government in the form of legal-political

institutions that exercise jurisdiction over a territory. To Moore’s conditions of a political
commitment, viability and agency, the general conception of political people proposed
here adds an element of identifiable particularity. A people, too, is a distinct political
collective that connotes a particular attachment of its individual members. There is a
longstanding tradition in political thought that contrasts civic and cultural nationalism in
terms of universalism versus particularism. This argument is untenable, both conceptually
and in practice: peoples also have distinct languages, histories, and territorial attachments.
However, the content and features of distinctiveness are, at least in theory, different in
cultural nations and political identities.
This is to say that a group seeking to obtain or maintain self-determination ought to have a
relevant reason for self-government—namely to explain why their specific political project
is not feasible within another legal-political unit. As a rule, the viability condition means
that the group should have the capacity, or at least the potential capacity, to sustain
autonomous legal political institutions—they must be sufficiently large and have access to
the required material resources. The capacity and viability dimension ought to be
evaluated, sometimes counterfactually, under the assumption of decent international
conditions. For instance, if the Chechen Republic of Ichkeria that declared independence in
1993 proved non-viable, it was presumably not because of internal circumstances, but due
46
Moore, supra note 32, at 127.
47
to military invasions from outside. Hostile international conditions of this kind can be
taken into account in an “all things considered” judgment about the feasibility of secession
in a specific case and its utility. But they are not first order moral-normative considerations
to determine viability, and whether a claim to self-rule is justified.
With the four main conditions that define a political people, the indeterminacy challenge is
tackled. They are sufficiently demanding and clear to distinguish between peoples and
many other kinds of groups in the world—related to hobbies, geographical locations,
artistic tastes, lifestyle preferences, family relations, and so on. All of these other
important aspects of human and social life also find expression and protection in legal and
political rights, such as freedom of association and political participation. Self-government,
the territorial right of jurisdiction over a territory, is claimable only by a political people, a
specific kind of group. Any definition yields grey areas and borderline cases, but the
dimensions and conditions specified above give us a sufficiently clear and plausible picture
that tackles the challenges of indeterminacy raised against ethnicity and culture-based
48
definitions and resists purely subjective conceptions. If peoples can be defined and
identified according to their political projects and particularities, the questions remain:
why and in what sense “peoplehood,” thus understood, anchors the claim to self-
government.
III. Why Peoples’ Self-Determination?
We have seen above that both Kantian and Lockean—and, to an extent, liberal
nationalism—justifications of general territorial right draw on the functions that the
territorial authority performs—the provision of basic needs and establishment of a system
of rights and justice. The justification is instrumental or functional in the sense that it
draws on the goods that the territorial authority delivers. At the same time, once the
people emerges as an important component in the picture—as the subject of self-
determination, or, for example, the legitimate holder of territorial rights—other norms and
considerations are implicitly incorporated into the theory. From a purely functionalist
position, it would follow that the territorial units ought to be created and maintained in a
way most conducive to optimal results with respect to the pertinent goods and functions.
However, Lockean and Kantian positions agree that there is something normatively
valuable about the wish and inclination of the members of a people to govern themselves
49
jointly—presumably even if the results are suboptimal with respect to the function.
47
This is not a judgment about the rightfulness of the Chechen attempt at secession, but an example for how the
condition of viability operated.
48
Purely subjective conceptions are typical of proponents of plebiscitary approaches. See Harry Beran, A Liberal
Theory of Secession, 32 P OL. S TUD. 21 (1984); see also C HRISTOPHER W ELLMAN , A T HEORY OF S ECESSION : T HE C ASE
FOR P OLITICAL S ELF -D ETERMINATION (2005). I return to this issue below.
49
“Sub-optimal” does not connote extremely bad or catastrophic.
According to Nine, peoples’ self-determination—their inclination to form and sustain self-

government and self-identification of the individuals of which the people is composed—is
a condition for the legitimacy of the territorial political authority, beyond how it performs
50
on delivering the goods that justify territorial right in general. The residual territorial right
of the people in the Kantian approach also assigns value to considerations beyond the
51
capacity of the state to perform its legitimizing functions. What, then, is valuable about
this subjective and inter-subjective aspect of self-determination? This is the subjectivity
objection to self-determination. As Moore notes, “[i]t is not at all clear that the fact that
people have a particular identity, in itself, constitutes an argument for recognizing it
52
politically or institutionally, at least not without additional arguments.”
There is a case to make that a freedom-based account explains the value assigned to
peoples’ self-determination in theories of territorial right. On the freedom-based view, the
kind of shared political projects that members of self-determining groups aspire to pursue
and maintain through the exercise of self-determination are valuable from the point of
53
view of their individual freedom —that is, the realm of freedom to form and follow one’s
own life-plans and pursue projects valuable to them. Accordingly, these political
commitments gain a normative claim to be respected, subject to important limitations
arising from the individual rights of their members, and to conditions of reciprocity and
54
generality in regard to rights of non-members. Following Christopher Wellman, we can
distinguish between arguments for self-determination that value freedom for instrumental
55
reasons and those that value it for deontological reasons. The freedom-based
justification of self-determination belongs in the latter category in that it considers the
freedom of individuals, including in the exercise of self-determination, as valuable in and
56
by itself, even if the results are suboptimal in terms of wellbeing.
With the freedom-based justification of self-determination in view, the Lockean and

Kantian theories of territory stand on two normative legs, neither of which is reducible to
the other. The functionalist argument justifies the institution of territorial rights in
general—the existence of territorially bounded, legal-political coercive authorities. The
50
Nine, supra note 10, at 51–52.
51
Stilz, Nations, States, and Territory, supra note 11.
52
MOORE, supra note 9, at 28.
53
Wellman, supra note 48 (defending self-determination as a case of freedom of association—an individual
liberty).
54
Ayelet Banai, Political Self-Determination and Global Egalitarianism: Towards an Intermediate Position, 39 S OC .
T HEORY & P RAC . 45, 49–63 (2013).
55
Wellman, supra note 48, at 38–58.
56
Id. at 39.
non-instrumental value of freedom in the exercise of self-determination justifies claims by

peoples to create and maintain “their” territorial polities, corresponding with their shared
political projects. The value of self-determination alone does not justify the institution of
territorial right and the territorial state in general. The functionalist account alone does not
explain why self-determination has value. Both arguments are required for the Lockean
and Kantian justifications of general territorial right and of specific right-holders—of the
principle of peoples’ political self-determination.
Among theories of secession and self-determination, we find a plebiscitary interpretation

57
of the freedom-based account, which the remainder of this section seeks to challenge.
On the plebiscitary view, self-determination is an individual right akin to freedom of
association. Individuals residing in a contiguous territory are free, by plebiscite, to secede
and to form an independent polity. The claimants determine the territory in which the
referendum is to be conducted and ought to gain a majority. If within a seceding state,
individuals residing in a contiguous territory have another preference: They too can
conduct a referendum and, if they gain a majority, secede. The ideal and model is of
voluntary association, whereby individuals are free to determine to which polity their
territory of residence shall belong, implemented in the form of cascading plebiscites. An
important difference between the peoples account and the plebiscitary interpretation is
the following: On the former, self-determination is a right of individuals in virtue of their
affiliation to a specific kind of a group or a corporate agent—the people. On the latter
view, self-determination is a right of individuals in virtue of their preference, regardless of
affiliation to any particular kind of group, and is not in principle limited to inclination
towards a shared political project. Two objections to the plebiscitary interpretation are
noteworthy. First, it is liable to the indeterminacy objection, mentioned above, in that it
leaves the subject of self-determination far too ambiguous and fluid. Subsequently, there
is an implausible mismatch between the subject and the content of the right. Self-
determination, after all, pertains to state institutions. They are weighty and complex
institutions; their making and breaking is complicated and burdensome. To be sure,
sometimes there are good reasons to make and unmake political borders. But given the
nature of the task, these reasons ought to be strong. It is not clear how any ephemeral
individual preference and identity could potentially justify such dramatic an occurrence as
secession. Second, the plebiscitary interpretation grants individuals the right to determine
the jurisdictional fate of the territory in which they reside. However, places of residence
are often the outcome of previously allocated territorial rights. People live where existing
states permit them access and residence and in accordance to their property regimes and
rights. The plebiscitary interpretation does not take this consideration into account, let
alone offer a solution. It remains unclear what justifies the prerogative of individuals to
57
See Wellman, supra note 48; Beran, supra note 48; see Thomas Pogge, Cosmopolitanism and Sovereignty, 103
E THICS 48, 69–70 (1992); see also Amandine Catala, Secession and Annexation: The Case of Crimea, 16 GERMAN L.J.
581 (2015) (presenting an amended version of the choice theory).
58
determine the jurisdictional fate of the territory on which they happen to reside. The
peoples perspective is liable to neither objection and is, therefore, proposed here as the
appropriate interpretation of the freedom-based account of the value of self-
determination.
D. The Case of Crimea
With the main justifications of territorial right in view, this section proceeds to examine
their implications to the case of Crimea. The discussion considers the situation prior to the
secession of Crimea in 2014 and its subsequent annexation to Russia. The first question at
hand pertains to the right-holders: Which peoples and nations in the territory are in a
position to be recognized as having potential territorial right and valid claims to self-
determination in the territory or in parts of it? International law and the theoretical
principles reviewed above converge on their time perspective in that they give priority,
indeed nearly exclusive attention, to the present: Present borders and present population.
In the period of Crimea as an autonomous republic within Ukraine (1991–2014), Russians
were the larger national group in Crimea, amounting to some sixty percent of the
population of just over two million, followed by Ukrainians and Crimean Tatars that made
59
for about twenty-five percent and twelve percent of the population respectively. It is
fairly clear that each of these three groups can be described as a people and as a nation in
view of the criteria and conditions stipulated above. From the perspective of the nation,
we look at cultural features of the group, possibly a belief in common descent and self-
identification. Crimean Tatars have cultural characteristics, including language, religion,
and history distinct from the Russian and Ukrainian population. The Russian and Ukrainian
nationalities are also connected each to a language, religion, and history. Ukrainian
nationalism is comparatively recent and the boundaries of this nation remain internally
contested. However, claims to national self-determination appear in the beginning of the
60
twentieth century, in the aftermath of the Russian Revolution and the First World War.
Today, census data indicates that individuals in Crimea indeed identify themselves with the
three nationalities. At the same time, closer sociological studies indicate that the
relationship between Russian and Ukrainian identities is not one of clear and
58
This is not to undermine rights anchored in residence and occupancy. Only the move from residence and
occupancy to the right to determine territorial jurisdiction in the plebiscitary approaches is hasty.
59
For demographic data, see, e.g., Jane Dawson, Ethnicity, Ideology and Geopolitics in Crimea, 40 C OMMUNIST &
P OST-C OMMUNIST S TUD. 427, 429 (1997); see also State Statistics Committee of Ukraine, A LL -UKRAINIAN
P OPULATION C ENSUS (2001), available at http://2001.ukrcensus.gov.ua/eng/results/general/nationality.
60
NORMAN H ILL , C LAIMS TO T ERRITORY IN I NTERNATIONAL L AW AND R ELATIONS (1945); see also MACARTNEY, supra
note 20.
straightforward separation: Some identify with both, while for others there is no overlap
61
between descent, language, and self-identification.
As noted above, liberal nationalism takes a twofold, contested step from the inter-
subjective fact of nationality to justification of territorial right. First is the claim about the
tight relationship between nationality and political self-determination; second is the
justification of territorial right by interaction over generations with the territory and
investment of material and symbolic value in it. Both arguments find a measure of
pertinence and validity in the case of Crimea but also face important challenges. After
Ukraine’s independence, Crimean political parties reflected national allegiances to an
important extent. The Republican Movement of Crimea and the Republican Party of
Crimea (RDK and RPK), co-founded by Yuriy Meshkov, took a pro-Russian stance without
62
subscribing to fully-fledged ethno-cultural Russian nationalism. In 1994, Meshkov was
63
elected President of the Autonomous Republic of Crimea, winning over seventy percent
64
of the vote in the second round, running on an unmistakably pro-Russia agenda.
However, neither attempt at secession nor violent confrontation ensued at the time, but
negotiations with Kiev to keep Crimean autonomy within Ukraine and to refuse
“Ukrainization” of the region did take place. Two political organizations of the Crimean
Tatars took part in the post-Independence politics: The Organization of the Crimean Tatars
National Movement and the National Movement of the Crimean Tatars. The former was
politically oriented toward strong claims to autonomy and Tatar self-determination in
Crimea, with a confrontational attitude towards the Soviet and later Ukrainian rule; and
65
the latter sought accommodation within the larger state. This glance into the political
scene in Crimea following Ukraine’s independence illustrates that while nationality no
doubt influences political mobilization, it is not as such a political program. Both Russian-
based and Tatar-based political forces present competing political visions, some taking a
strong regional perspective, whereby Crimea is an autonomous political unit for its
different nationalities, either within Russia, within Ukraine, or in neither.
How do the national groups in Crimea fare, from liberal nationalism’s perspective, in the
justification of their territorial right? In view of the multilayered history and the diversity of
Crimea’s population over the centuries, the picture is complicated and it is hardly possible
61
Paul Pirie, National Identity and Politics in Southern and Eastern Ukraine, 48 E UROPE -A SIA S TUD. 1079, 1083
(1996).
62
Dawson, supra note 59, at 432–33 (showing a distinction from other pro-Russian splits from the Republican
movement that endorsed ethno-cultural Slavic nationalist ideology).
63
From 1991 Crimea’s administrative status within Ukraine was The Autonomous Republic of Crimea.
64
Sergei Markedonov, The Crimean “Question,” OPEN D EMOCRACY (Jan. 16, 2015), available at
https://www.opendemocracy.net/od-russia/sergei-markedonov/crimean-%E2%80%98question%E2%80%99.
65
Dawson, supra note 59, at 434.
to establish a unique territorial claim according to liberal nationalism’s perspective. Tatar

history in Crimea is thought to date back to the thirteenth century, including some 300
years of a self-ruling Khanate, first independent and then within the Ottoman Empire,
which was brought to an end with the conquest by Russia in 1783. The Tatar history in the
territory can be classified as an investment of symbolic and material value in it, making it
their homeland. It is harder to determine how exclusive their territorial claim is and within
which geographical boundaries it applies. Describing the Khanate, one historian notes:
Crimea was a land of great diversity, illustrated, for

example, by the variety of religions found on the
peninsula. The presence of Muslims and Orthodox,
Armenian, and Catholic Christian, as well as Rabbinic
and non-Rabbinic Jews was reflected in all spheres of
life, from urban space and architecture to art and
literature. However, little is known about how actually
lived together and how attributes other than religion,
such as gender, kinship or occupation, impacted daily
life. Our understanding of how the state handled this
66
diversity is equally imperfect.
Today, the Tatars amount to only around ten percent of the population of Crimea. One of
the reasons for this demographic marginalization was the influx of Russian and Ukrainian
populations following the conquest of Crimea and its annexation to Russia in the later part
of the eighteenth century. In 1944, Tatars were deported from Crimea, and have only been
allowed to resettle there since the 1980s. During more than two centuries of Russian rule,
Crimea also became the homeland of Russians that over the generations invested symbolic
and material values in it. It is unnecessary to endorse Russian national myth about the
“civilizing” conquest of “barbarian” Crimea in order to recognize the important ways in
which Russian cultural and material investment has shaped the territory. The question of
whether to extend the time perspective from the present and take into consideration past
injustices of the kind faced by the Taters in Crimea poses a genuine dilemma. On the one
hand, international law and liberal political theory have good reasons to take a future-
oriented perspective and bracket the Pandora’s box of territorial conquests. For
international law the principle of uti possidetis was necessary to make self-determination
in the post-colonial period at all practicable—requiring that self-determining units gain
their independence in their existing borders at the time, and with the population within
those borders. From a liberal perspective, presently living individuals and their wellbeing
have the moral priority over those long gone. It is rather hard to establish that an inter-
generational harm occurred, whereby events that took place in the late-eighteenth century
affect presently living Crimean Tatars. On the other hand, full neglect of historic claims and
66
Denise Klein, Introduction, in T HE C RIMEAN K HANATE BETWEEN E AST AND W EST 4 (Denise Klein ed., 2012).
injustices implicitly permits the mighty to hold on to the gains they made by force, without
repercussions. Be that as it may, from liberal nationalism’s perspective, Crimean Tatars
have a valid claim to territorial self-determination in Crimea. It remains unclear to which
geographical domain within the peninsula the Tatar claim applies, and how to balance it
against Ukrainian and Russian territorial claims to Crimea anchored in their national
histories in and interactions with the territory.
I. The People’s Perspective
We have seen above that contemporary theories of territorial right propose a notion of the
people as a right-holder as an alternative to liberal nationalism’s cultural nation. While the
material of which peoples are constituted sometimes overlaps with the material that
constitutes the nation, they are also distinct in that they focus on shared legal-political
histories and projects. Looking at the case of Crimea from this perspective, a complex
picture emerges. While political identities contain a national element, there is no
straightforward overlap between nationality and political self-determination. Legal-
political history reveals a number of periods that influence and shape political orientations
today: Legacy of the early modern Khanate followed by Imperial Russia, a Soviet republic,
and an autonomous republic within Ukraine. In parallel, Russian and Tatar groups can also
be classified as peoples, based on their distinct legal-political histories and current
orientations. Russians mobilize to keep their language as dominant in the territory and a
political alliance to Russia, while Tatars struggle to resettle and reestablish themselves in
67
the territory, seeking autonomy.
The long and distinct legal-political history of Crimea, coupled with the current regional
identity reported by the inhabitants, bring in the possibility of a “Crimean people,” with
internal cultural diversity in languages, ethnicities, and religions. From the people’s
perspective, there is a strong case to make in favor of Crimean political-territorial self-
determination in the form of a strong territorial autonomy with internal constitutional
arrangements to safeguard the standing of the demographically marginalized Tatar
population. From a moral-normative perspective, Crimean autonomy within Russia is, in
principle, equivalent to Crimean autonomy within Ukraine. This might come as a
disappointment to those that feel strongly in favor of either country, but there is no
principled normative reason for why Crimea ought to be within the borders of Russia or of
Ukraine. There are, however, normative non-ideal considerations of feasibility and
procedural norms to be taken into account. First, Russia’s intervention in Crimea that
resulted in the secessions finds little if any justification—normative or legal. Second, in the
long run, given domestic balances of power, it is more feasible that Crimean autonomy,
67
For overviews of identities based on surveys and sociological studies, see Pirie, supra note 61; see also Carina
Korostelina, The Multi-Ethnic State-Building Dilemma: National and Ethnic Minorities’ Identities in Crimea, 5 NAT’ L
I DENTITIES 141 (2003).
and in particular the rights of the Tatar population, would be respected within Ukraine
than within Russia. Third, at the same time, there is no foreseeable scenario in which
Russia will re-cede Crimea and hand it back peacefully to Ukraine. In sum, the application
of the theories of territorial right to the case of Crimea enables us to identify normatively
preferable solutions, though not in the form of an unequivocal and exclusive territorial
right-holder. In view of the immense implementation challenges that international norms
face—in general, and especially with respect to powerful international actors as Russia—
the prospects for these solutions to materialize are not bright.
E. Conclusion
This article explored three main accounts of territorial right in contemporary political
theory and applied them for the case of Crimea. It was argued that liberal nationalism
continues to be prominent both in theory and in practice, and is best construed as a
prudential argument—but its normative justification for self-determination of cultural
nations falls short. Two additional accounts of territorial rights were considered: The
Lockean and the Kantian perspective. On this account, a people, defined predominantly in
legal-political terms and distinct from the nation, is the subject of self-determination. This
conception of the people was defended against two standards objections: Of
indeterminacy—how to determine who is a people—and of subjectivity—why subjective
self-identifications of individuals matter. In view of the principle of national self-
determination, the nationalities in Crimea—Crimean Tatars, Russians, and Ukrainians—
have overlapping territorial claims. However, the theory does not provide clear guidelines
for how to balance between such claims or adjudicate between them. The people’s
perspective traces political identities and allegiances. In the case of Crimea, with its long
legal-political autonomous and distinct history, and strong regional identities of its
inhabitants, this perspective opens the possibility of a culturally diverse Crimean people.
There is a strong case to make, from the normative perspective, for Crimean territorial self-
determination, in the form of regional autonomy, either within Russia or Ukraine. In the
long run, it is more feasible that such autonomy would be better respected within Ukraine
than in Russia. However, it seems unlikely that the territory will be handed back by Russia.
The application of normative principles to the case of Crimea helps identify preferable
solutions, but does not identify an unequivocal and exclusive territorial right-holder. In
view of the immense challenges that the implementation of international norms has faced,
the prospects for these solutions to materialize are not bright.
“Trust the People”? Democratic Secessionism and

Contemporary Practice
By Malcolm MacLaren
Abstract
Using the secession claims in Ukraine and elsewhere as points of reference, this article
reflects on the meaning of popular sovereignty and consent of the governed in divided
societies.
The article begins by critiquing the approach to secession claims prevailing internationally.
It finds that the imprecision of the applicable rules, the plethora of secession claims, and
most importantly, the claims’ adverse effects on relations between and within states urge
different treatment.
The article then assesses an alternative approach, based on realizing the principles of self-
determination and democracy through independence referendums. It finds that a doctrine
of democratic secessionism, if conceived consistently and implemented consequently,
shows considerable potential as a guide in treating secession claims. Moreover, this
alternative proves preferable to the prevailing approach, practically as well as
conceptually.
According the principles of self-determination and democracy higher legitimacy than and
precedence to other considerations would in some conflict cases lead to striking outcomes.
Nonetheless, such an alternative approach could prove not only intrinsically but also
instrumentally valuable, contributing, ceteris paribus, to conflict resolution.
A. Introduction
1 2
Are all of us really advocates of democracy and self-determination (hereinafter SD) now?
Do we “trust the people” as these foundational principles of international ordering
*Habilitand, Law Faculty, University of Zurich (current); Post-doc Fellow, NCCR – Challenges to Democracy in the
21st Century (2006-2009). I am particularly grateful to Lars-Erik Cederman and Arman Grigoryan, colleagues in the
NCCR, for their comments on an earlier version of this article. The events and websites cited are current to the
beginning of April.
1
E.g., see,: “One simply cannot be against self-determination of peoples; one then would be for determination by
others and thereby for foreign rule, oppression, tyranny, discrimination, despotism etc.” Jörg Fisch, Die
arguably call on us to do? The attempt to realize these principles simultaneously is

appealing: Singly considered, both are “good things.” Moreover, direct democracy has
played an increasing role in sovereignty politics and major constitutional change in the last
3
twenty-five years. Would-be states appeal to SD and democracy in the hope of gaining
4
international recognition and membership in intergovernmental organizations. As
experience shows, however, the attempt is problematic, raising difficult questions,
theoretically and practically.
In general, the concepts of SD and democracy appear complementary. The former refers
here to the ability of persons living in a particular territory to decide the political status of
that territory, while the latter refers to popular participation in and control of collective
affairs. To enjoy the consent of the population, political power in general and the
government in particular must be popularly controlled. Both SD and democracy are
concerned with the sources of state authority, and both are premised on popular
empowerment: people are the rightful “authors” and “owners” of their political being. The
state is formed and formalized to achieve particular goals.
In the context of binding referendums on independence, however, the exercise of SD and

democracy can produce tensions and even oppose one principle to the other. These
tensions and this opposition can in turn encourage societal unrest, as has been variously
demonstrated in countries in, or coming out of, conflict.
The following article is a critical reflection on SD and democracy and the way in which their
relationship relates to conflict resolution in divided societies. It takes SD and democracy as
5
first principles and deduces from them what a compliant right of secession would look
Ratlosigkeit der Statussucher—Kosovo und das Selbstbestimmungsrecht der Völker, NEUE ZÜRCHER ZEITUNG (Jan.
2006) (own translation).
2
Over the last decades, democracy has emerged as the dominant reference point—“the default”—internationally
regarding the control of political power. See, e.g., Amartya Sen, Reif für die Freiheit—Warum Bürgerrechte vor
grossen Katastrophen schützen, INTERNATIONALE POLITIK 34 (June 2005).
3
See Anne Peters, The Crimean Vote of March 2014 as an Abuse of the Institution of the Territorial Referendum,
LIBER AMICORUM TORSTEN STEIN 225 (forthcoming 2015), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2463536 (“[A] free territorial referendum is emerging as a
procedural conditio sine qua non for any territorial re-apportionment.”).
4
Leaders of the breakaway Yugoslav and Soviet republics held referendums before declaring independence so as
to legitimize their respective SD claims. See ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 79
(1995). More recently, separatist regions in the Caucasus have sought to “earn[] their sovereignty” by successfully
building effective democratic institutions. Nina Caspersen, Separatism and Democracy in the Caucasus, 50
SURVIVAL 4, 113–14 (2008) (without emphasis).
5
Traditionally, external SD refers to a decision on the international legal status of a particular population and
territory. Secession—one such form—is defined here as a process of their withdrawal from a larger existing state
whose result is the creation of a new state. It may be brought about consensually or non-consensually.
2015 “Trust the People”? 633
like. Divided societies constitute the subject of analysis: Virtually every modern
secessionist movement is ethno-nationalist in nature, and several recent referendums
have taken place in conflict countries. More specifically, the article considers the meaning
6
of “democratic secession” in the context of the ongoing crisis in Ukraine.
In the event, the article argues that oft-alleged dilemmas regarding SD and democracy are
illusory, neither inherent in their relationship nor inevitable in attempts to realize them
simultaneously. Observers’ difficulties in imagining democracy meeting the diverse needs
of those who seek to self-determine stem from an underdeveloped interpretation of
(substantive) democracy in the context of (external) SD. (Even advocates of “choice
7
theory” fail to show the courage of their convictions in applying the doctrine.) The
prevailing thinking about and approach to the issue of SD are neither coherent nor
defensible, least of all in democratic terms. As recent developments confirm, SD claims are
not handled internationally according to clear rules and in a consistent fashion.
Reconciliation between issues of SD and democracy can be, however, achieved through
reconsidering the normative meaning of SD and then deducing guidelines for a right of
secession that is conceived and implemented consistently with it. More specifically, self-
government as a concern central to both SD and democracy can serve as the basis of
political authority at all levels of governance. The ideals of popular sovereignty and
consent of the governed possess real ideational and constitutive power, and the
constructive potential of this power has yet to be exhausted, conceptually or practically. If
so, the policy imperative in the present context is to facilitate the expression of the opinion
of the population concerned by providing open spaces for free and fair political
contestation (including about secession). Soliciting a mandate from the population
concerned is the end in itself.
The argument here is not so much definitive as it is facilitative. I am not arguing in favour
8 9
of secession as being morally required, philosophically supportable or particularly
6
Democratic secessionism is understood here as a variant of the right of SD. It is a general, free-standing right of
secession that is vested in a group of persons that wishes to secede from its existing political community. The
secessionist group proceeds to delimit “its” territory democratically. The aim thereby is to “maximise the number
of individuals who live in mutually desired political associations” and to establish rightful political boundaries by
the majority principle. Aleksandar Pavkovic, Secession, Majority Rule and Equal Rights: a Few Questions, 3
MACQUARIE UNIV. L.J. (2003), available at http://www.austlii.edu.au/au/journals/MqLJ/2003/5.html. See also Harry
Beran, A Liberal Theory of Secession, 32 POL. STUD., 21 (Mar. 1984); David D. Speetzen & Christopher Heath
Wellman, Choice Theories of Secession, in ASHGATE RESEARCH COMPANION TO SECESSION 413–26 (Aleksandar Pavkovic
& Peter Radan eds., 2011).
7
Alan Patten, Democratic Secession from a Multinational State, 112 ETHICS 558, 560 (2002).
8
See, e.g., David Philpott, Self-Determination in Practice, in NATIONAL SELF-DETERMINATION AND SECESSION 79
(Margaret Moore ed., 1998).
10
politically promising (as elsewhere argued). Instead, I present extreme (but plausible) SD
claims and pursue one approach to treating them, i.e. democratic secessionism, to its
logical conclusions and foreseeable outcomes in the context of resolving societal (ethnic)
conflict. My intent is to show that this alternative approach is neither inadvisable nor
impossible and thereby to shift the terms on which related discussion tends to be carried
out today. Let me here, in the spirit of the Swiss historian Jacob Burckhardt, “say an Our
11
Father and have a go at it.”
B. Questions Raised
The heated debate internationally over the political status of territories and the recent
balloting amid conflict in Crimea, Luhansk, and Donetsk demonstrate the enduring appeal
of democratic secession. Despite the different contexts of application as well as their
manipulation and misuse, votes on separation remain attractive and in principle,
12
authoritative in multiethnic countries.
13
Such popular votes seem to provide means of settling “sovereignty politics.” Upon closer
inspection, recourse to a referendum in this context raises difficult but fundamentally
important questions as to how the related rights are to be precisely defined. In particular
cases, the answers may determine the democratic nature—and hence legitimacy—of the
referendum process and outcome. These questions are inter-related but can concern, inter
alia, the “who,” “where,” “how,” and “when” of an independence referendum
14 15
respectively. They are posed squarely when the legal basis of the political SD is defined:
9
As argued, for example, by Mill: “Where the sentiment of nationality exists in any force, there is a prima facie
case for uniting all the members of the nationality under the same government, and a government to themselves
apart.” John Stuart Mill, Chapter 16: Of Nationality, as connected with Representative Government, in
REPRESENTATIVE GOVERNMENT (1861).
10
Formatively, see Chaim Kaufmann, Possible and Impossible Solutions to Ethnic Civil Wars, 20 INT’L SECURITY 136 n.
4 (1996).
11
“Ein anderes Mal möge hier der Versuch eines Code dieses sogenannten Völkerrechts gemacht werden, wobei
man ein Vaterunser beten und darauf losgehen muss.” JACOB BURCKHARDT, WELTGESCHICHTLICHE BETRACHTUNGEN 125
(1970).
12
For further information, see Stephen Tierney, Whose Political Constitution? Citizens and Referendums, 14
GERMAN L.J. 2185, 2192 (2013) (“by the late 20th century, [. . .] the referendum had become, for many, an
automatic part of constituent constitutionalism and even of the constitutional amendment process.”).
13
For more information on “sovereignty politics,” see When Referendums Work: Vox Pops, ECONOMIST,
http://www.economist.com/node/17249644. Outside of the last year and partially outside of Europe,
referendums on political status (including independence) have been held in the last decade and a half in East
Timor, Montenegro, Netherlands Antilles, New Caledonia, Puerto Rico, South Ossetia, and South Sudan.
14
See generally, Maya Hertig Randall, Démocratie directe et partition d’Etats: réflexions sur l’exercice du pouvoir
déconstituant, in DIREKTE DEMOKRATIE: HERAUSFORDERUNGEN ZWISCHEN POLITIK UND RECHT 339 (Andrea Good & Bettina
Platipodis eds., 2013).
 the role of “outsiders” in settling secession claims. (I.e. who is actually the
sovereign: What should international authorities or foreign powers decide and
what ‘the people’?)
 the definition of the territory and population in question, the “bounded

community.” (I.e. what are the territory’s boundaries, and which groups are
entitled to participate in democratic process realizing SD?)
 the many-sided nature of identity and the trans-national interests of individuals.

(I.e. how are multiple—be they complimentary, cross-cutting, or cosmopolitan—
identities and allegiances to be handled?)
 the relevant unit of political contestation. (I.e. how is this unit to be delineated on
one hand, and further majority-minority divisions and cascading secession claims
dealt with on the other?)
 the terms of the independence referendum. (I.e. what constitutes a clear

question, a fair process, and a decisive majority—and who exactly is to set these
terms?)
 the finality of its result. (I.e. the sovereign may have decided, but when is this “the
last word”? How might, has, and should the repeat exercise of popular
sovereignty in constitutive politics be regulated?)
C. Prevailing Approach
I. Description
The usual answers to the preceding questions and the contemporary meaning of SD more
generally are confused and contested. As far as particular cases go, the answers have been
ad hoc in nature and have varied by country-context. Help in orientation may be found in
the observation that the envisaged and actual role of democracy in settling SD claims has
tended to be secondary: Indeed, “democratic deficiencies [. . .] have plagued the
16
invocation of the international legal principle of self-determination.” The issue of SD—
and more, of secession—in international relations remains primarily political.
15
E.g., in crafting a secession clause, drawing up the list of eligible voters or setting limits on campaign spending.
16
Russell A. Miller, Self-Determination in International Law and the Demise of Democracy?, 41 COLUM. J.
TRANSNAT'L L. 601 (2002–03).
SD has achieved the rank of an international norm that is peremptory in nature (ius
cogens) and a concern of all states (erga omnes). The exact breadth and content of the
concept are, however, uncertain but certainly changeable. Article 1(2) UN Charter from
1945 is open-ended, speaking of “equal rights and self-determination of peoples”: Neither
does it define what a “people” is nor does it specify the legal consequences thereof.
Although Article 1(1) of the international covenants on human rights from 1966 is more
emphatic and universal, its practical application remains unclear: For example, does SD
17
imply a right to sovereign statehood?
This question was answered in the affirmative in the context of decolonization. SD was
expected to lead to the independence of the non self-governing territory and population,
18
but it could also be achieved by free association or integration with another state. The
end of the Cold War raised the possibility of extending SD to neo- or non-colonial contexts
and subjected the principle to further debate. Since then, the community of states has
handled SD claims with great care, and it has fought shy of defining SD clearly. The UN
Security Council has, for example, attempted to respect both the foundational rule of state
sovereignty and a right to SD in the particular context and has sought to characterize all
cases as special and none as precedent setting. Although “there is in international law no
19
absolute guarantee of the territorial integrity and the political unity of existing states”,
the right to external SD has been generally restricted by international (and regional)
organizations to exceptional situations. Decolonization, serious human rights violations, as
well as alien subjugation, domination, and exploitation have been deemed sufficient to
qualify as such situations (per “remedial rights theory”)—but not a simple vote in favour of
20
independence by a sub-national group (per primary rights theory”). Unilateral secession
is only permissible if the group concerned has been subjected to sufficiently severe and
ongoing injustices at the hands of the parent state. Where a right to external SD has been
otherwise identified, the UN has sponsored many plebiscites and referendums in order to
enable the populations concerned to express their will about the political status of their
21
territory.
17
See BRAD R. ROTH, SOVEREIGN EQUALITY AND MORAL DISAGREEMENT: PREMISES OF A PLURALIST INTERNATIONAL LEGAL ORDER
80–81 (2011).
18
See G.A. Res. 1514 (XV), U.N. Doc. A/RES/1514 (Dec. 14, 1960); see also G.A. Res. 2625 (XXV), U.N. Doc.
A/RES/25/2625 (Oct. 24, 1970).
19
Urs Saxer, Unabhängig werden ist nicht einfach, NEUE ZÜRCHER ZEITUNG (Sept. 2, 2008) (own translation).
20
JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 417 (2d ed. 2006).
21
Notably no such plebiscite or referendum was foreseen regarding the disputed status of Kosovo. See S.C. Res.
1244 (1999), S/RES/1244 (1244), June 10, 1999; Rambouillet Accords: Interim Agreement for Peace and
Self-Government in Kosovo, S/1999/648 (June 7, 1999).
In other words, SD in international law is deemed to be flexible in nature, and what it

demands in the particular case is considered to vary according to the facts. The outcome
desired by the state community in the application of this instrumental principle is “to
develop friendly relations among nations” (Art. 1(2) UN Charter), and the determinative
facts remain open to its interpretation. This interpretation is above all intended to
promote the raison d’État by protecting and affecting the “fundamental interests” of single
states, especially in own territorial integrity. Too many states (multi-ethnic in particular)
remain afraid of according priority to protection of ethnic groups over state sovereignty by
22
internationally recognizing a right to secede in the absence of injustice.
A prevailing preference for realizing SD through autonomy was made plain in the Cold
War’s aftermath. The constituent republics of Yugoslavia and the USSR were, like colonies
before them, deemed to be entitled to independence, political units and ethnic groups
elsewhere only to autonomy. It is still widely argued today that internal SD, or the
conferral of various political and social rights on a group once “the people” had achieved
statehood, is more likely to approximate “true democracy.” Politicians (and scholars)
contend that it allows participation of all inhabitants (their concerns being represented at
least in the existing state’s central government) and that it respects plural identities and
trans-national interests (especially of individuals in the ethnic group in question, who are
23
not cut off from “the wider world”).
As regards current arrangements in Europe, the Venice Commission’s review found that
describing secession as “inimical to national constitutional law” would be an
24
“understatement”. (The language used varies—e.g. stipulating that the unity of the
country, national sovereignty, or territorial integrity is eternal, unimpeachable, or
25
indivisible—, but the aim is the same—i.e. to forbid secession expressly.) Where
26
secession is actually foreseen constitutionally (through entrenchment or being read in),
the principle underlying the process seems to be that of consent. The details vary by state,
but a territorial community that wants to secede must clearly indicate its willingness to do
22
To do so would be tantamount to declaring themselves “a suicide club.” Daniel Thürer, Autonomie statt
Sezzession [sic]?, 2 unizürich—MAGAZIN DER UNIVERSITÄT ZÜRICH (1996) (own translation). The Great Powers also
pursue their own interests, granting or refusing recognition to individual secession claims so as to bolster allies
and weaken adversaries.
23
See, e.g., Stéphane Dion, Address at the School of Public Policy University College London: How to deal with
secessionist demands in democracies (Oct. 15, 2003) (notes from the address) (on file with author).
24
European Commission for Democracy Through Law, Self-Determination and Secession in Constitutional Law, at
2, CDL-INF/2000/2 (Dec. 10–11, 1999), available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-
INF%282000%29002-e.
25
Such provisions include the current UKRAINIAN CONST. art. II, cl. 2.
26
See also Peter Radan, Conference of the Association for Research on Ethnicity and Nationalism in the Americas:
Constitutional Law and Secession (2007) (unpublished paper) (on file with author).
so—usually through a referendum—and the existing state must consent—usually through

an amendment to the state constitution. (For example, the UK government promised in
2014 to respect the outcome of the independence referendum in the secessionist territory
Scotland and not to interfere with its sovereignty.) The standards for such votes, e.g. the
27
majority required for approval, are all over the map, literally and proverbially.
For its part, the repeat exercise of popular sovereignty in constitutive politics has been
regulated inconsistently (be the context that of constitutional law, political science, or
democratic theory). The tendency is to think in terms of “one man, one vote, one time.”
(Indeed, the term “neverendum” is used to connote endless constitutional deliberations,
repeat referendums on secession, and perpetual instability in the state concerned.)
Successive votes on political status have, however, been allowed when the power that be
has not had the “right answer” to the question (regarding independence in Quebec in
1980) or when the process has been ‘captured by politics’ and has not reflected the “true
28
opinion” of the electorate (regarding the Lisbon Treaty in Ireland in 2008). Thereafter,
the “settled will of the people” is likewise spoken of.
The recent secession claim of Crimea has challenged the prevailing approach to SD once
more. In general, states have assessed this claim, like those of South Ossetia, Abkhazia, and
Kosovo earlier, according to the traditional criteria (e.g. commission of serious human
rights abuses and prior constitutional arrangements) as well as their abiding concern for
29
territorial integrity and international stability. Russia and its allies have come to a
contrary finding of the claim’s legitimacy. These also assert that Russia’s intervention and
the Crimean people’s choice on their future status are “in conformity with international
law,” assertions that are prima facie plausible considering the aforementioned ambiguities
in the relevant rules. In point of fact, they have made a significant innovation to the lex
27
For example, the EU could equally well have insisted in the Montenegrin referendum on independence that the
requisite majority be fifty percent or sixty percent. It settled on fifty-five percent. In the case of the referendum in
southern Sudan, it was set at sixty percent of those voting; in Scotland, fifty percent plus one. What exactly
constitutes “a clear majority” in the case of Quebec independence is left up to politics by the Supreme Court of
Canada. See Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.), available at http://scc-
csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do. Canada’s Clarity Act, which is to give effect to the
advisory opinion, leaves the question up to the Canadian parliament after a vote on independence. An Act to Give
Effect to the Requirement for Clarity as set out in the Opinion of the Supreme Court of Canada in the Quebec
Secession Reference, S.C. 2000, c. 26, available at http://laws-lois.justice.gc.ca/eng/acts/C-31.8/page-1.html.
28
Further see discussion of re-doing or undoing of Irish referendum on Lisbon Treaty in Grainne de Burca, If at
First You Don’t Succeed: Vote, Vote Again: Analyzing the Second Referendum Phenomenon in EU Treaty Change,
33 FORDHAM INT’L L.J. 1472 (2011).
29
See Press Release, General Assembly, General Assembly Adopts Resolution [GA/11493] Calling Upon States Not
to Recognize Changes in Status of Crimea Region, U.N. Press Release GA/11493 (Mar. 27, 2014), available at
http://www.un.org/press/en/2014/ga11493.doc.htm.
30
lata in stridently advancing the pretence of democracy to legitimize the external SD.
Russia has treated it as an accession of the independent “Republic of Crimea,” which
Crimea and Sevastopol briefly proclaimed after joining together, and which subsequently
requested admission to the larger country. The Kremlin has strongly opposed the
“annexation” label as offensive towards the inhabitants of the peninsula; the request is
alleged to have been in conformity with a democratic process that had reflected the
31
Crimean people’s desire to join Russia. It sees this popular desire as stemming not from
military or other pressure exerted by Russia but from the systematic oppression of a
distinct people. Most recently, the draft law to revise the country’s language policy
promulgated a majoritarian, ethno-nationalist vision of the Ukrainian identity. The reform
32
was seen by them as a threat to ethnic minorities, antithetical to collective and individual
diversity as well as to full political debate.
Although this rationale for Russia’s approach was clearly self-serving, it was notably made
in terms of legal principles and is in keeping with the Zeitgeist regarding democracy.
Government is to be of and by, as well as for, the people. The people are to drive decision-
making in all matters of public concern: a country’s political status like its political system
and most of all, its government must be responsive to the people’s changing demands.
These are to be restricted only by their own will and not by any rules, institutions, or
‘superior orders’ which they have not assented to. That “declarations of independence
may, and often do, violate domestic legislation”, the Russian President observed after the
referendum in Crimea with reference to the case of Kosovo, “does not make them
33
violations of international law”.
Put concretely: The residents of the Crimea had a right to choose their own political future;
they had freely and fairly exercised that right; and they had clearly and convincingly
demonstrated a desire to join Russia. In its argumentation, the Kremlin estimated that
democracy is sufficiently established in international law such that no third country would
30
See generally, William W. Burke-White, Crimea and the International Legal Order, Research Paper No. 14–24,
Public Law and Legal Theory Research Paper Series, Univ. of Pa. Law School (July 2014), available at
http://ssrn.com/abstract=2474084.
31
For references, see Annexation of Crimea by the Russian Federation, WIKIPEDIA, available at
http://en.wikipedia.org/wiki/Annexation_of_Crimea_by_the_Russian_Federation.
32
On the Crimean Peninsula today, the majority is ethnic Russian, the rest being either Russian-speakers
(Ukrainians) or “leaning towards” Russia (Crimean Tatars). See generally Katie LaRoque, The “Moral Project” of
Post-Communist Ukraine: Understanding the State, Nation(s), and the Future of Ukraine, 11 DEMOCRACY AND SOC’Y 6
(2014).
33
Vladimir Putin, Address to the Russian Federation, PRESIDENT OF RUSSIA (Mar. 18, 2014), available at
http://eng.kremlin.ru/news/6889.
try to reverse a secession that was achieved democratically and that a more readily
34
available right of SD would meet with significant resonance in the state community.
The ongoing crisis in Ukraine has demonstrated once more that the meaning of SD in the
international legal order is “continuously evolving conceptually and experientially in
response to the pressure of events, geopolitical priorities, and the prevailing moral and
35
political climate”. Going forward, the unilateral secession of the Crimean republic and the
36
plethora of other claims being made pose the question whether this newer conception of
the “people” in SD should be developed further and if so, how.
II. Critique
The community of states’ intent in its current approach to assessing legality and legitimacy
of secession claims may well be to avoid uncertainty and conflict over boundaries and
thereby to foster stability and peace among all existing and any new states. The actual
consequences are manifold and baleful. The approach has proven inflammatory as a
process and as a concept, internally and externally. It works in individual cases against legal
security and predictability; it leaves SD open to manipulation, self-serving interpretation,
and hypocrisy; and most significantly, it can cause inter-ethnic conflict to escalate into
public and even wider violence, including war between states.
The differing official opinions on contemporary claims have made the shortcomings of the
prevailing approach obvious. In particular, they have demonstrated how the approach is
irrelevant to, if not subversive of, a right of secession conceived and implemented
according to the principles of SD and democracy:
 As noted, the community of states has approached secession claims one by one,
deciding whether to respect territorial integrity according to flexible criteria. This
ability to decide the exception makes the international community effectively the
sovereign and not the relevant people, as on democratic principle the latter
34
In this respect, the Kremlin’s political calculations have been borne out. A large number of states supported
Russia, abstained, or were absent in voting on the General Assembly’s condemnatory resolution. Moreover, the
Referendum’s outcome has not been challenged and no attempt has been made to overturn it, before the UN or
elsewhere.
35
RICHARD A. FALK, HUMAN RIGHTS HORIZONS 112 (2000).
36
Given the multi-ethnicity of most countries today, the use of independence referendums could be even more
widespread in future. In Europe alone, possible regions include the Basque country, Corsica, Flanders, Northern
Cyprus, Republika Srpska, Transdniestria, and Veneto.
37
should be. Its members must be given the opportunity to participate in the
realization of this choice of independence; their democratic rights may not be
38
usurped by international authorities or foreign powers, even if done in good
39
faith for their benefit.
 In assessing claims, states refer to the consequences of secession for security and
stability. (For example, many states are withholding recognition of Kosovo for fear
of “reigniting the Balkan powder keg.”) Such reference is often used to trump
contrary considerations and to decide who counts as a “people” and what a
people deserve. However, it conflicts with democratic principles, since security
and stability are defined according to others’ interests. Reference should not be
made to the security and stability of the community of states in general, but to
that of the state in question and of its citizens in particular. How is the particular
polity functioning (or not)?

40
There has been, as also noted, a bias in international practice (and theory) in
favour of continuity in a country’s political identity, which takes the form of a
strong preference for realizing SD internally rather than externally. Against this
bias it can be plausibly argued that speaking of a “limited right to self-
determination” for ethnic groups or for related political units that do not
comprise constituent republics of the state (as was commonly asserted upon
41
Yugoslavia’s break-up) is an oxymoron. The concept of SD implies the right to
establish a sovereign and independent state, and secession should not be treated
42
differently than other choices of political status. Finally, the burden of proof in
37
The UN’s nation-building efforts in East Timor have been sharply criticized on this basis. See Hua Fan, The
Missing Link between Self-Determination and Democracy: The Case of East Timor, 6 NW UNIV. J. INT’L HUMAN RTS.
176, paras. 25–30 (2008).
38
As the French philosopher Renan puts it, “if anyone has a right to be consulted in this matter, it is the
inhabitant.” Ernest Renan, Qu’est-ce qu'une Nation?, (Mar. 11, 1882), available at
http://ourworld.compuserve.com/homepages/bib_lisieux/nation04.htm (own translation).
39
These “arm-twisters” should “defer more to the political wills of the constituents that will end up living under
the newly created constitutional orders.” Zoran Oklopcic, What’s in a Name: Five Theses on the Self-
Determination of Peoples, THE TRANSATLANTIC ASSEMBLY (Feb. 15, 2006), available at
http://transatlanticassembly.blogspot.com/2006/02/whats-in-name-five-theses-on-self.html.
40
See, e.g., Amitai Etzioni, The Evils of Self-Determination, 89 FOREIGN POL’Y 21, 25 (Winter 1992–93) (“[p]eople
desire and deserve a government that is responsive to them but not necessarily a separatist one.”).
41
As exemplified by the opinions of the Arbitration Commission of the Conference on Yugoslavia (a.k.a. Badinter
Arbitration Committee).
42
Similarly, see: “[i]t [is . . .] within the power of the people of Canada [. . .] to effect whatever constitutional
arrangements are desired within Canadian territory, including, should it be so desired, the secession of Quebec
from Canada.” [1998] 2 S.C.R. 217, para. 85 (Can.).
43
the treatment of a secession claim is mistakenly laid on the secessionists. If a
group in a liberal democratic society clearly expresses its preference for an own
state, those who would grant it a lesser measure of autonomy (i.e. officials
defending the external boundaries and internal order of the existing state) should
be required to justify why that group’s preference should be overridden rather
than deferred to.
 A group’s claim for external SD is deemed by many observers to be legitimate

when internal SD has been firmly refused (a “just cause” in contradistinction to a
“choice” argument). On this view, repeated rejection of reasonable demands for
political autonomy or serious human rights violations by the government qua one
group entitle another group in the country to secede unilaterally. The relevant
threshold varies by commentator (persecution or single abuses? ongoing or
past?). However low that may be, the criterion again gives others too much say,
democratically considered. The success of a claim is dependent on their behaviour
rather than on the political desires of the group concerned.
 A related concern about the prevailing approach is that focus on the rights of the
existing state and the secessionist group respectively risks leaving out of
consideration—and not providing for—the interests and desires of a newly-
created minority. Achieving SD through democratic process does not guarantee
44
that internal democracy will actually prevail in the new state: “SD referendums”
have often been instrumentalized by ethnic majorities to consolidate power
during an internal conflict. External SD cannot just mean switching the identity of
45
those groups suffering discontent or disadvantage. If a resultant government is
to be truly democratic, it must pursue the good of all people within its
boundaries.

46
The pejorative term “neverendum” and similar language seek to discredit
renewed efforts in favour of constitutional reform, including group
accommodation outside of the current state. Stability and continuity are
considered as virtues in themselves rather than considered as to their
43
For example, see: “[T]hose who wish to undermine or to destroy the Canadian federal system must define
clearly the risks involved and demonstrate that the new judicial and political situation they want to establish
would be in the general interests of our people.” Pierre Trudeau, On Quebec Nationalism, in THE ESSENTIAL TRUDEAU
105, 115 (Ron Graham ed., 1998).
44
See YVES BEIGBEDER, INTERNATIONAL MONITORING OF PLEBISCITES, REFERENDA AND NATIONAL ELECTIONS 91 (1994).
45
A current example is the plight of minority groups in Kosovo under Albanian domination.
46
E.g. speaking of “sore losers” “re-fighting old battles” and of an always present “threat” or “a looming, restless
spectre.”
consequences, one of which is a failure to consult dissatisfied groups fully. A

minimum requirement of democracy is that periodic, free, and fair elections be
held. In these, voters are entitled to “throw those bums out” whom they elected
enthusiastically last time around. Why is it only possible for the sovereign to
47
change its mind in representative democratic votes and not in direct?
D. Proposed Alternative
I. Elaboration
So far, I have sketched potential dilemmas in the relationship between SD and democracy,
and I have highlighted several shortcomings in the prevailing approach to secession claims.
The answer to these, as I will now explain, lies in questioning the concepts of SD and
democracy involved and in viewing SD as a principled means of legitimization of political
power nationally.
To be more specific: the aforementioned dilemmas and shortcomings may be traced back
to limited understandings of the constituent concepts, especially the ethnic nationalist. On
it, the population in question must objectively constitute a “nation” or a “people” in order
to form a political unit. Related claims are justified as the expression of that population’s
will. For its part, “democracy” has a particular—and for modern western sensibilities,
peculiar—meaning: “[R]ule of one kind of people, by one kind of people, for one kind of
48
people”.
The ethnic nationalist understanding should, however, be considered contingent and open
to revision, since it is the product of particular circumstances of time and place. State
identity may in theory and in fact be based on a civic understanding, according to which
the population in question is not an ethnos but a demos. To ground consent, the relevant
population has fundamental things in common other than ethnicity, such as a sense of
common destiny (or modestly, of common fate). These commonalities give rise to the
sense of belonging and to the desire to live together that are determinative of political
49
unity.
47
In Scotland, the prospect of a neverendum will allegedly create political uncertainty and damage economic
well-being. It would be logical, however, for any devolution plan proposed to be voted on just as the option of
independence was earlier.
48
ROBERT M. HAYDEN, BLUEPRINTS FOR A HOUSE DIVIDED: THE CONSTITUTIONAL LOGIC OF THE YUGOSLAV CONFLICTS 145 (2000).
49
See JEAN-LUC NANCY, THE TRUTH OF DEMOCRACY 34 (Pascale-Anne Brault & Michael Naas trans., 2010)
(“[D]emocracy is first of all a metaphysics and only afterwards a politics.”).
The US polity, which was created by the voluntary act of individuals who became its
50
citizens, provides an archetype for a principled alternative. What drove the
revolutionaries’ fight for independence was not a desire for ethnic SD but the desire for
51
democratization and a responsive government. The meaning of SD today should arguably
return to its roots in the two-fold understanding famously set out in the US Declaration of
Independence. As the Declaration’s very first sentence states, the “Laws of Nature and of
Nature’s God” entitle any “People” to determine their own government. As its third and
fourth paragraphs explain, those who govern draw their legitimacy from the consent of the
people, and when government becomes destructive of the ends for which it is created,
that people are entitled to alter or abolish it. SD on this understanding consists of people’s
ability to realize themselves in public affairs and to control political power, equally and
52
freely.
The alternative approach proposed here is indifferent as to the reason(s) why the
population favours or opposes secession. The approach is based on non-coerced political
choice: if they wish, a group is entitled to separate even from a (otherwise) perfectly
legitimate state. Choice suffices for that group to found a right to secession and for the
state to forfeit its claim to respect for its territorial integrity. The identification of the ‘self’
(the people holding the right to SD) involves just a subjective element (i.e. that the group
in question considers itself distinctive) and not necessarily objectively determinable
characteristics. Democratic process is to establish the existence of such a self-awareness.
Although the existing state may well offer a separatist group greater security, a higher
standard of living, etc. than it would have alone, if the group still prefers, in a fully
informed and free decision, to make this trade off and achieve independence, it is entitled
to do so. The choice would still be justifiable on the principle underlying SD and
democracy. For under a system of self-government, priority is given to the way that
decisions are taken rather than to their rationale and results.
The key question then is what guidelines may be proposed for treating individual secession
claims. In order to make the “original meaning” of self-government in the Declaration
50
These were, more precisely, white male adults in the population of the Thirteen Colonies speaking through
representatives to the Continental Congress in Philadelphia in the summer of 1776.
51
At its founding, the US was thereby “spared the cheapest and most dangerous disguise that ‘the absolute’ ever
assumed in the political realm, the disguise of a nation.” HANNAH ARENDT, THE HUMAN CONDITION 195 (2d ed. 1998).
52
To be more precise: The Declaration conflates individual with collective rights, bringing together the idea that
all “men” are created equal and endowed with certain rights (individuals against their governors) with the idea
that a “people” assuming statehood are separate and free and are entitled to respect in their foreign relations
(one people against another). Indeed, the Declaration implies that these individual and collective rights reinforce
each other. See DAVID ARMITAGE, THE DECLARATION OF INDEPENDENCE: A GLOBAL HISTORY (2007); see also Adam I.P.
Smith, All Men, TIMES LITERARY SUPPLEMENT (June 8, 2007), available at http://www.the-
tls.co.uk/tls/reviews/history/article749863.ece.
effective, a political system needs to embody certain goals. As regards SD these include
that:
 The people (qua demos) are the authors as well as the owners of the state. The
principle of SD means the right of a people to choose a political status. If
independence is freely chosen, it also means that a democratic political system
must be adopted for the new state. In both contexts, there is an exercise in
collective decision-making, and in both contexts, the people must be the basis for
authority (i.e. in the state and of the government, respectively). For their part,
collective decisions should not be subject to the influence of extraneous actors
seeking a particular outcome. While mediation may facilitate conflict resolution
between groups, ultimately the “self” in self-determination must be qua
definitione the freely formed will of the population in question and not that of any
outsiders. Likewise, how can an appeal to the will of the people logically be
allowed to end in the exclusion of the people from influence in public affairs?
 If the state is constituted by agreement (formal or informal) among different

groups for their mutual benefit, these groups may seek to renegotiate the
agreement or may withdraw their ongoing consent at any time, depriving the
53
existing state of its ongoing legitimacy. Recognizing that a group possesses the
right to secession does not, however, mean that it can exercise the right to the
maximum extent. As an agreement, its terms cannot be changed unilaterally or
54
peremptorily by one group. All constituent groups should have a say on a
55
territorial re-apportionment.
 Just as future generations are entitled to redesign the internal constitutional

order in full or in part, the right to external SD is not exhausted by its exercise on
56
one occasion; “the right subsists and continues to be vested in the people”.
Status—be it substantial autonomy or full independence—should not (and
53
Further see Donald W. Livingstone, The Very Idea of Secession, 5 SOC’Y 38–39 (1998).
54
N.B.: No consideration of other groups should be required in cases of subjugation, domination or exploitation.
55
This view has gained credence through recent international practice. See the reaction of Foreign Minister of
Spain, a country with a particular interest in the debate on democratic secessionism, to the prospect of Scottish
secession: “If in the UK, both parties agree that this is consistent with their constitutional order, written or
unwritten, Spain would have nothing to say, just that this does not affect us. [. . .] No one would object to a
consented independence of Scotland.” The minister also stated that the independence of Kosovo, which Spain
does not recognize, was a different case because it was based on a “unilateral decision.” Graeme Murray, Spain
will not Veto an Independent Scotland Joining EU, SCOTTISH EXPRESS, Feb. 26, 2012 (citing Jose Manuel Garcia-
Margallo).
56
Daniel Thürer & Thomas Burri, Self-Determination, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW para.
22 (Rüdiger Wolfrum ed., 2010), http://ilmc.univie.ac.at/uploads/media/self-determination_empil.pdf.
57
cannot) be determined “once and for all”, if it is subject to popular consent. The
people (qua demos) are entitled to—and will likely in changed circumstances—
58
change their minds about their political status. An abiding will cannot be
counted on, and the notion of a “final status” in democratic secessionism is a
59
fallacy. (N.B. a referendum in favour of re-unification could conceivably be held
60
in a newly independent state.)
 Self-government means that those subjected to a political decision are entitled to

take part in it, i.e. there is a fundamental congruence between being governed
and governing. Citizens have the chance to participate in civil and political life on
equal terms, especially members of minorities, who are protected against a
“tyranny of the majority.” Democracy is not just about “one man, one vote” but
about the chance for everyone to realize themselves and to contribute to the
development of the polity as a whole. Legitimate demands by minority groups are
recognized in law and effected in practice within the state through creation of
61
appropriate political arrangements, structures, and procedures.
 Should a group claim a right to external SD, a referendum should follow in due
course. The preference for such votes in ascertaining the opinion of the
population in question conforms to the basic requirements of SD. Although its will
could be stated through executive decree or parliamentary act, the “self” should
be directly consulted in an act of SD.
57
Similarly, see James Tully, Introduction, in MULTINATIONAL DEMOCRACIES 5 (Alain-G. Gagnon & James Tully eds.,
2001).
58
There is precedent in this respect. The “Good Friday Agreement” provides that the British Secretary of State will
call a referendum on independence in seven-year intervals if it is “likely” that the majority of those voting would
express a wish that Northern Ireland should cease to be part of the UK and form part of a united Ireland instead.
Northern Ireland Act, 1998, 46 Eliz. 2, c. 47, available at http://www.hmso.gov.uk/acts/acts1998/19980047.htm.
59
In reference to the ongoing “threat” of Scottish independence, it seems appropriate to refer to the prediction
of Macbeth: “We have scotch’d the snake, not kill’d it. She’ll close and be herself, whilst our poor malice remains
in danger of her former tooth.” WILLIAM SHAKESPEARE, MACBETH act 3, sc. 2, 14–15.
60
Appropriately, the current constitutions of both the Czech and Slovak Republics provide for a reunification of
the states by mutual assent, and the Treaty establishing a Constitution for Europe provided for a state that has
withdrawn from the Union to rejoin it. Treaty Establishing a Constitution for Europe art. I-60(5), 2004 O.J. (C 310),
(Dec. 16, 2004).
61
For measures that may be taken in a pluralistic society to militate against majority rule see inter alia Thürer.
These measures include minority political rights, e.g. “say & control” per Lund Recommendations on the Effective
Participation of National Minorities in Public Life. Lund Recommendations, OSCE (1999), available at
http://www.osce.org/hcnm/30325.
 The specific terms of the referendum are not prescribed by logic (or
recommended by experience internationally). These should instead be negotiated
and agreed by both sides, the movements for and against secession. Ideally, an
unambiguous question with a “yes” or “no” answer is put to the voters, a certain
threshold of them participates, and a substantial majority results, following an
open, informed, and fair debate. The referendum’s result may then be taken as an
accurate and decisive expression of the collective will.
 As high turnouts in the referendums in Scotland and Quebec inter alia evidence,
the population will be willing and able to make a choice itself about which polity it
wishes to belong to. Voters will in effect prioritize a political identity that
represents their truest self. A common worry about recourse to a referendum is
that the voters will not understand the question or appreciate its significance. To
permit the people to vote only on low politics and not high is, however, to fear
democracy.
 Should a group achieve independence, it must be willing to grant others within

the new state the same right of SD that it has just exercised. The so-called
orphans of secession may also choose independence. (On democratic terms,
partition is logically compatible with secession.) If they do not, they must be
provided for (as individuals and groups) through protection of their identity and
the ability to participate effectively in the life of the state. To proceed otherwise
would be to favour one group over another rather than to accord all the equal
respect and dignity due in a democratic society.
II. Possible Objections
Since the possible consequences of a free exercise of SD are so weighty, the alternative
approach to the interplay of SD and democracy must first be demonstrated to be
preferable to the prevailing, practically as well as conceptually. Here I follow criteria
developed by a “remedial rightist” to assess theories of secession: Is the alternative
approach proposed here “minimally realistic”; what “perverse incentives” could such an
62
approach create; and how “morally accessible” is it? These questions should be
addressed in terms of recent related experience.
Their short answer is that the proposed approach is not flawless, and it cannot be
interpreted and concretized in conflict resolution without difficulty. This approach brings
its own risks and possibly undesirable consequences. Nonetheless, the guidelines outlined
above seem more promising than those usually applied. The former are more likely to
facilitate the harmonious resolution of secession claims than the latter, as the following
62
Allen Buchanan, Theories of Secession, 26 PHIL. AND PUB. AFF. 31, 42–44 (1997).
examples of the application of the ‘original meaning’ of SD attest. Accordingly, the

appropriate response to these objections is to limit and regulate in advance the relevant
process as far as possible rather than to reject its application out of hand.
1. Realism
We may now agree that political communities must be able to decide their future
according to their own understanding of their situation, needs, and interests. Among the
questions raised by secession claims perhaps the most difficult – but the most central – to
answer is who these communities entitled to SD are. It is truly a paradox: “[T]he people
63
cannot decide until someone decides who are the people”. Moreover, as Robert Lansing,
the realistic Secretary of State of the idealistic US President Wilson, warned: “Without a
definite unit which is practical, application of this principle [of SD] is dangerous to peace
64
and stability.” Subsequent commentators have claimed that only non-democratic means
can define the demos. The “self” on their understanding is “the outcome, and not the
65
source of radical constitutional reconstruction”.
In response to these arguments, it should be first noted that the question does not present
itself as often as thought. It may well be “very difficult to draw boundaries in such a clean
66
and neat way that homogeneous countries are created”. As the former Canadian Prime
67
Minister Trudeau advises, however, “the first law of politics is to start from the facts”.
These serve in the present context to assuage concerns about the application of the
principle of SD and the definition of the people.
The facts in the present context reveal first, that there are instances in which a group in
question is a clearly defined people with a clearly defined territory: I.e. it has a discernable
commonality as well as a homeland. The claim of a particular population to constitute a
people has often gone unchallenged in international legal affairs. (For example, the
International Court of Justice recognised in its Western Sahara opinion (1975), East Timor
judgment (1995) and Palestinian Territory opinion (2004) the populations as peoples in
68
discussing the right to SD.) Second, the people can in practice often derive their
63
W.I. JENNINGS, THE APPROACH TO SELF-GOVERNMENT 56 (1956).
64
JOHN O’BRIEN, INTERNATIONAL LAW 163 (2001).
65
Oklopcic, supra note 39.
66
Arend Lijphart, Back to Democratic Basics: Who Really Practices Majority Rule?, in DEMOCRACY’S VICTORY AND
CRISIS 125, 143 (Axel Hadenius ed., 1997).
67
Trudeau, The Reason Behind Federalism, in THE ESSENTIAL TRUDEAU 117, 119 (Ron Graham ed., 1998).
68
Likewise, the Independent International Commission on Kosovo assumed in its report that there is a people of
Kosovo with little discussion: “The people of Kosovo must take over the running of their affairs.” INDEPENDENT
boundaries from their existing political unit. A secessionist movement does not arise and
make its claim ex nihilo. It operates within a defined territory and addresses itself to a
particular population within a state from which it seeks to withdraw. (Attempts to define
the collectivity of French-Canadians today offer a good example. The great majority of
French-speaking Canadians live in the province, and it is within this unit that separatists
have made their claim. Its boundaries can be used—at least initially (infra)—to define the
relevant population.) In further cases, it is not necessarily the intent of secessionists to
draw “clean and neat” boundaries, an intent that may be shared by prospective minorities
who would prefer to remain where they are. The sense of a territory where most group
members live and consider themselves to have their roots may not be definitive of their
group identity.
Recent experience suggests that there may be pragmatic solutions to the problem as to
who exactly belongs to “the people” who are to be “trusted.” An overarching definition of
the “nation” that encompasses all the inhabitants of the particular territory when these
are divided by ethnic differences may not need to be imposed or agreed in advance. Such a
definition can, ceteris paribus, be negotiated between parties, decreed by a higher
authority, and voted on by the groups concerned, as successively explained below.
The success of the independence referendum in 2006 on whether Montenegro would

secede from its Union with Serbia is particularly instructive. The run-up to the referendum
69
witnessed heated arguments about who had the right to vote. On the day, the electorate,
a.k.a. the pouvoir deconstituant, comprised anyone who was over eighteen years old and
70
who had been permanently resident in Montenegro for at least twenty-four months. The
referendum on the state status of the Republic of Montenegro demonstrates that a
multiethnic territory that includes an alien population and a diaspora can be defined as a
demos and not as an ethnos and is able to exercise a right to external SD peacefully.
Another aspect of the problem of who the people entitled to SD are was considered by the
Canadian Supreme Court in 1998. In the Secession Reference, the Court held that Quebec
could not in view of legal and pragmatic considerations secede unilaterally,
INTERNATIONAL COMMISSION ON KOSOVO, THE KOSOVO REPORT: CONFLICT, INTERNATIONAL RESPONSE, LESSONS LEARNED 287
(2000).
69
The framework for voting was established by the Law on the Referendum on State Legal Status that was
adopted by the Parliament of Montenegro on 1 March 2006 following extensive consultations between the two
sides on the referendum issue and, it should be kept in mind, intervention by the EU. OSCE/ODIHR Referendum
Observation Mission, Republic of Montenegro Referendum on State-Status—21 May 2006 (Final Report), Warsaw
4 August 2006, available at http://www.osce.org/odihr/elections/montenegro/20099?download=true.
70
In other words, individuals’ prior choice of permanent residency was taken to be determinative of their identity
for the purposes of the referendum and not their citizenship or self-designation as ethnic Montenegrins, Serbs,
Muslim Slavs, or Albanians. This people have been called the pouvoir constituant composé.
notwithstanding any majority in its favour in a provincial referendum. Principles of

Canadian constitutionalism would require the provincial government and the federal
government to recognize their obligations and the expression of popular opinion
(respectively) and to enter into comprehensive negotiations with all parties to
71
Confederation. In answer to the question of the “lives of others,” the Court effectively
adopted—as we should here—the “all affected interests” principle to define the
72
population that was to be consulted.
Related to the preceding is what has been called (ironically) “the Russian doll problem” of
nationalism, namely that any territorial approach to a minority issue merely pushes the
problem of who the people are to a lower level, owing to an admixture of majority and
minority groups. Accepting the principle of popular decision-making when groups in a
country are intermingled territorially but distinct in identity means that each group / sub-
group / sub-sub-etc. group or rather, each minority within each majority within each
minority ad infinitum may agitate for the polity to be reconstituted so that it is fully
recognised and equally empowered. Here closer inspection reveals that the process of
deconstructing a multiethnic entity need not require massive violence. There are means
beyond recourse to (the euphemistic) “voting with the feet” and “exchanges of
populations” to resolve the problem of minorities within the traditional ‘nation’ state.
These include, ceteris paribus, democratic means. The key is to appreciate that the polity
qua territory voting and the polity qua territory subsequently seceding may legitimately
differ from one another. Once this possibility is accepted, the population concerned may
keep voting until separation is no longer sought by a majority and all political units have
decided whether they prefer ‘to stay or to go’. In an ongoing case, a Swiss canton (Jura)
was created (and has been recreated) by the exercise of SD within a federal state. A series
of referendums beginning in 1974 and continuing through 2014 has been held at all levels
of government existing (national, regional, and local) to determine the new canton’s
territory. Boundaries have been—and can be through time and space—drawn and redrawn
73
following democratic process to suit the wishes not of the ethnos but of the demos.
71
Neither could Quebec dictate the terms of a proposed secession to the other parties to Confederation nor
could, as the Court described the situation in an understatement, “the Canadian constitutional order [. . .] be
indifferent” to a clear vote in favor of separation from Canada. [1998] 2 S.C.R 217, para. 92 (Can.).
72
The maxim of Roman law “quod omnes similiter tangit ab omnibus comprobetur” captures this principle.
(Roughly translated: “What touches all similarly, should be approved by all.”) N.B.: Spanish Constitutional Court
recently applied this principle with a different result. In its decisions from 2008 and 2014, it required that all
Spaniards be able to vote in a referendum on the independence of a territorial unit (the Basque country and
Catalonia, respectively) and that such a process be led by the government in Madrid. See Peters, supra note 3, at
270.
73
Further see Andreas Glaser, Die Beilegung des Jurakonflikts—Ein Modell für die direktdemokratische Sezession
in Europa?, 115 SCHWEIZERISCHES ZENTRALBLATT FÜR STAATS—UND VERWALTUNGSRECHT 463 (2014); Patrick J. Monahan,
Michael J. Bryant & Nancy C. Coté, Coming to Terms with Plan B: Ten Principles Governing Secession, 83 C.D. HOWE
INSTITUTE COMMENTARY 36–37 (1996), http://www.cdhowe.org/pdf/comingtoterms.pdf.
2. Incentives
An obvious objection to the approach proposed here is that a right of secession so

conceived creates perverse incentives with dire effects. It would allegedly underestimate
the dangers involved in SD as well as the role of contemporary law in preventing their
realization. An example from international politics is the statement by former UN
Secretary-General Boutros-Ghali that “if every ethnic, religious or linguistic group claimed
Statehood, there would be no limit to fragmentation, and peace, security and economic
74
well-being for all would become ever more difficult to achieve.” Likewise, a horror
scenario is depicted nationally: under conditions of the alternative approach, “the
existence of a nation” would truly be, in Ernest Renan’s words, “based on a daily
75
plebiscite”!
Several considerations militate against such an objection in the international and the
national contexts and suggest that any secession would in fact be more likely to occur
peacefully. Allow me to enumerate these.
Using the security and stability of the community of states as a gauge for resultant
incentives is problematic. First, any such predictions rely on guesswork. There are too
many variables at play in these cases to be so sure about how permitting independence
will play out internationally, and even less can these alleged effects be weighed with
certainty against the tensions that might arise from not permitting independence. Second,
it should be kept in mind that the current international legal / domestic constitutional
restrictiveness about external SD and the continuing weakness of international minority
rights create perverse incentives themselves. On one hand, disgruntled, territorially
concentrated ethnic minorities may be tempted to resort to violence. (A main lesson from
the Kosovo conflict seems to be that a radical redrawing of political boundaries can only be
achieved with armed force.) On the other, the community of states is effectively
encouraged to take sides and intervene in related conflicts. (Outsiders instigate or
suppress insurrections, draw boundaries, herd groups together or drive them apart, and
then (re-)design a state’s constitutional order—often at cross-purposes with each other.)
Third, permitting secession recently has not set off a “stampede for the exits” and does not
76
support prophesies of doom and gloom. Fears of spill-over effects into other existing
74
U.N. Secretary-General, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping: Rep. of
the Secretary-General, para. 17, U.N. Doc. A/47/277-S/24111 (June 17, 1992).
75
Renan, supra note 38 (own translation).
76
Outside of USSR and Yugoslavia, there have only been three universally-recognized secessions in the last
twenty-five years—Czechoslovakia (1993), East Timor (2002), and South Sudan (2012)—none of which has set off
a chain reaction in their respective regions. The break-up of Czechoslovakia, for example, did not produce two
failed states and weaken international structures but solved an intransigent problem and strengthened the EU.
(N.B.: The “Velvet Divorce” was orchestrated by political elites not by the electorate.)
states should not be pandered to anyway: If the “national deal” is acceptable to the
constituent groups elsewhere, this state will be able to withstand “secession fever.” If it is
not and will not, should it be protected internationally? Finally, these prophesies are to a
large extent self-fulfilling. Existing states have it in their power to support a new state and
so to alleviate resultant strains if they choose. The fallout can be diminished by
establishing relationships with the new state, by providing political and economic aid, as
well as by integrating it into the international (especially regional) order.
Likewise, reference in this context should not be made, as it typically is, to the security and
stability of particular states. First, warnings of political “blackmail” and “sabotage” of
77
efforts at coexistence beg the question whether the group(s) in question should have a
right to secede at all. If so, a more permissive posture on “state-breaking” could create
proper incentives nationally: The prospect of secession would strengthen the position of
minorities in country-wide negotiations on the national deal. (A credible threat of exit may
prevent the tyranny of an ethno-nationalist majority, and a de facto minority veto may
78
bring the majority to strike a compromise acceptable to the other group(s).) Second, if
the democratic principle inherent in a state’s constitutional framework requires the
country’s government to respond constructively to secessionist demands (as the Canadian
constitution does per the Canadian Supreme Court), secessionists have an incentive to
79
hold referenda repeatedly until they achieve their desired result. What happens, critics
ask, to public confidence in and the stability of the polity when the referendum becomes a
“neverendum”? Here it is to be noted that, given its ever-changing demography and the
logic of democratic process, a state’s political status, like its political system, may never
80
achieve permanence anyway. Third, the oft-impugned sincerity of secessionist leaders—
i.e. these politicians are actually attempting to grab power rather than to work for the
welfare of the population—is irrelevant from a democratic perspective. What is relevant is
the reception that the proposed reform of state status finds in the wider public at the
81
given time. Finally, if the polity feels that “prudence” demands it, any risk hereby posed
to state stability could be “contracted around” in the national deal qua constitutional
77
E.g., Donald L. Horowitz, The Cracked Foundations of the Right to Secede, 14 J. DEMOCRACY 5, 10–11 (2003).
78
See generally Susanna Mancini, Rethinking the Boundaries of Democratic Secession: Liberalism, Nationalism,
and the Right of Minorities to Self-Determination, 6 INT’L J. CONSTITUTIONAL L. 553 (2008).
79
Similarly, see Sujit Choudhry & Robert Howse, Constitutional Theory and the Quebec Secession Reference, 13
CAN. J.L. AND JURISPRUDENCE, 144 (2000). In point of fact, Quebec has seen two referendums on sovereignty, and the
issue still cannot be considered “settled” once and for all.
80
See “[I]t may be Canada’s [and by extension other multiethnic countries’] particular fate to engage periodically
in existential constitutional discussions that may be impossible to resolve once and for all.” Sujit Choudhry,
Referendum? What Referendum?, 15 LIT. REV. OF CAN., 7 (2007).
81
See U.S. Declaration of Independence: “Prudence, indeed, will dictate that Governments long established
should not be changed for light and transient causes.” THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
arrangement. (The charter creating a union between Serbia and Montenegro in 2003, for
example, provided that Montenegro was not entitled to appeal for secession for three
years, i.e. before 2006, and that should this vote fail, it could not appeal again for another
82
three years.)
3. Accessibility
I believe that my alternative approach to secession claims based on a reconciliation of SD

and democracy would find broad acceptance—passive, if not active—in the international
community. International law and practice remain geared toward maintaining the existing
order, and one of its foundational rules is the inviolability of the state. There has been
reluctance in the present context to pierce the “veil” of the state and to be concerned with
83
the people(s) constituting it. Why then should the community of states and particular
states favour a more permissive rule?
To be clear: My approach opens the possibility of forming an independent political entity in

the context of ethnic conflict resolution but does not require it, as many states would
naturally fear. Secession is a drastic measure, and internal SD for related movements
84
should be preferred in policy-making. It should be considered a last resort, when
85
provision for “everything short of secession” will not lead to a peaceful, consensual
resolution of the conflict in question. In short: Secession if necessary, but not necessarily
secession.
The result of the popular consultations recommended may well be that secessionist
regions express a will to be independent. Engaging in negotiations with Crimea, South
Ossetia, Abkhazia, or Kosovo for the break-up of their country would be for many
Ukrainians, Georgians, and Serbians, from the government on down, difficult to accept:
These declare the secessionists to be “traitors” and seek to hold their country together by
coercion. The strength of their commitment to democratic values and to free and open-
82
The Swiss regulation of direct democratic process is well-developed and worthy of being referred to, e.g. in
terms of time needed to collect the required signatures, delay before vote held to allow proper deliberation, and
moratorium until another vote on same issue. See generally WOLF LINDER, SCHWEIZERISCHE DEMOKRATIE: INSTITUTIONEN,
PROZESSE, PERSPEKTIVEN 241–99 (2d ed. 2005).
83
Consider states’ (in)ability to define what constitutes a minority in the Council of Europe’s eponymous
framework convention, let alone to lay down comprehensive, binding rules about the preservation of the
particular characteristics of such groups.
84
The conflict parties might agree to postpone a definitive decision on secession by instituting autonomy for a
prescribed period, at the end of which the secessionist unit would be able to express its preference for either
through a referendum.
85
See also John Packer, The Origin and Nature of the Lund Recommendations on the Effective Participation of
National Minorities in Public Life, 11 HELSINKI MONITOR 29 (2000).
ended discussion would be tested: Would they at some point accede to a right of
86
democratic secession “fiat justitia ruat coelum”?
The extent to which my argument for a change in state-making is “accessible” to policy-

makers depends largely on the value that they attach to the realization of SD and
democracy. As suggested above, statehood has an instrumental value, as a means to other
ends; SD and democracy are considered here to be intrinsically valuable, foundational
propositions that cannot be deduced from any other propositions. (Similarly in the
Declaration of Independence, the people’s right to self-government is so self-evident that
it is not justified. Independence is exactly that, declarative.) The only subjects worthy of
87
protection are the human beings that constitute—who both form and make up—states.
Influential in policy-makers’ reactions to the alternative approach would also be a
mentality regarding popular sovereignty. What is their underlying attitude vis-à-vis the
Gestaltungskraft of democratic process—to what extent should it apply in these
88
situations? For example, is constitution-making an activity of elites or citizens? (The
preference internationally seems to be that legislatures and courts frame and amend the
constitution.) And can the sovereign change its mind or err in its decisions? (Contemporary
observers tend to assess referendum results in terms of “right” and “wrong” and to
advocate that voters’ discretion be limited.) In short, do policy-makers actually “trust the
89
people” in political decision-making?
It may, of course, be too much to expect that states will cease insisting on the inviolability
of territory and sovereignty and further, adopt democratic secessionism for the sake of
90
“mere” principle. If so, the sense in denying the reification of statehood is also justifiable
on the basis of pragmatic considerations. Were the community of states to consider coolly
86
Or “may justice be done though the heavens fall” (own translation).
87
As Renan remarks, “we have banished from politics metaphysical and theological abstractions. What remains
afterwards? Man—his desires, his needs.” Renan, supra note 38 (own translation).
88
For example, see the argument that institutional devices are to be designed and imposed domestically in order
to exercise responsible control on the influence of “unfathomable” pre-political forces on politics in society. Ulrich
K. Preuss, Constitutional Powermaking for the New Polity: Some Deliberations on the Relations Between
Constituent Power and the Constitution, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY: THEORETICAL
PERSPECTIVES 143, 164 (Michel Rosenfeld ed., 1994). Contra RAYMOND BOURDON, RENOUVELER LA DÉMOCRATIE: ÉLOGE DU
SENS COMMUN (2006) (arguing that common sense is good sense and thus to be trusted).
89
I.e. the rallying cry of supporters of extending the electoral franchise in Great Britain in the nineteenth century.
In full see: “[T]rust the people, and they will trust you—and they will follow you and join you in the defense of
that Constitution against any and every foe. I have no fear of democracy. I do not fear for minorities; I do not care
for those checks and securities [thought by some] of such importance.” Randolph Henry Spencer, Lord Churchill,
Speech: Trust the People (Apr. 16, 1884), at http://www.bartleby.com/268/5/7.html.
90
N.B.: Van der Westhuizen perceives “change in world politics [a]s increasingly being tied to successful
argumentation processes and the significance of persuasion”, what he refers to as “ideational power.” Janis van
der Westhuizen, How (Not) to Sell Big Ideas: Argument, Identity and NEPAD, INT’L J. 369, 370 (2003).
the pernicious effects that the prevailing approach to SD has internationally, it might see
the attraction of pursuing an alternative. The prevailing approach serves, in short, to
promote conflict internationally about SD claims. On one hand, the issue of whether or not
to recognize the independence of a contested region has fuelled Great-Power rivalry. (In
the case of Kosovo, the West deemed its recognition of that region’s secession to be
“exceptional”, as the fact pattern did not satisfy conventional criteria. Russia cites this
recognition, however, as precedent for its recognition of Crimea’s secession, though Russia
91
itself does not recognize Kosovo’s independence.) On the other, the result of applying
the prevailing approach in each of the aforementioned cases is a frozen conflict and an
uncertain legal status, which situation can benefit no one. Moreover, an alternative
approach may alleviate these effects to the advantage of the state as well as of the
people(s). Especially in the aftermath of conflict, a measure of justice in the form of SD
could promote lasting peace among groups. As Renan observes, “one nation never has a
real interest in annexing or retaining another nation in face of its opposition”. The moral, if
not the factual, basis of the authority of the former depends on the latter’s consent. In
practice then, “the wish of nations is ultimately the only legitimate criterion, and it must
92
always be reverted to.”
E. Outlook
In a book published in 1990, Timothy Garton Ash stated that the collapse of Communism in
Eastern Europe offered “no fundamentally new ideas on the big questions of politics, law,
and international relations. The ideas whose time has come are old, familiar, well-tested
93
ones”. It may well be that Garton Ash, who as a professional historian should have known
better, spoke too soon. As explained here (and in other special issue contributions), the
national crisis in Ukraine (as well as other recent practice) challenges foundational
principles of international ordering, including that of external SD. It raises questions
regarding state allegiance and the fixing of state boundaries for which there is no
consensus internationally. One of these is what to do when in the course of human events
(to paraphrase the US Declaration of Independence), one people believes it necessary to
dissolve the political bands that have connected them with another and to assume a
separate and equal station among the powers of the earth. The ongoing crisis presents
thereby an occasion to reflect upon, and possibly an opportunity to effect a change in, the
meaning of SD internationally. It may be that in the aftershocks of Communism’s collapse
now being experienced in Ukraine, the innovation in constitutional and international law
that Garton Ash ruled out is still coming about.
91
Russia did the same earlier in supporting South Ossetia’s and Abkhazia’s secession claims. See Rein Müllerson,
Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and
Abkhazia, 8 CHINESE J. INT’L L., 2 (2009).)
92
See Renan, supra note 38.
93
TIMOTHY GARTON ASH, THE MAGIC LANTERN 154 (1990).
I have sought to make plain, if it was not already through the current debates over
secessionist movements, the inadequacy of the prevailing approach. Judgements as to
when a SD claim should be granted recognition internationally are largely made according
94
to geopolitical and ideological preferences. The ideals of democracy and SD may be
universally supported, but their content and application are not universally agreed. The
result in contemporary practice is that the values of SD and democracy involved are
honoured more in their breach than in their observance.
I am not claiming that democratic secession is the answer to the problems of divided
societies. Both democracy and SD are concepts that promise more than they can ever
95
fulfil. They are Idealbegriffe that do not, cannot, correspond to reality. For its part, the
referendum as a constitutional tool is also subject to critical perceptions and imperfect
96
process. There is no panacea for identity conflicts, but some proposed solutions are more
97
asymptotic than others. Even if these only mean the partial realization of principles,
something worth doing, as popular wisdom has it, is worth doing badly.
In the event, the alternative approach that I have presented proves not to be tricky or
absurd as it might at first glance appear. The dilemmas in dealing with SD claims in practice
are not necessarily irresolvable but may be resolvable—and, ceteris paribus, by democratic
means at that. Realizing SD and democracy simultaneously may in fact help to resolve
ethnic conflict. If the alternative approach above is applied faithfully, the way to resolve
the conflict in Ukraine is relatively straightforward and the conclusion un-ambivalent—
both contrary to that of the prevailing approach. Popular consultation and deliberation on
the political status and governance of the contested regions should be allowed according
to nationally negotiated referendums that are supervised by disinterested international
authorities. Ukraine and its allies condoned the referendum in Crimea sponsored by Russia
in March 2014 as non-democratic (neither free nor fair) and illegal (per constitutional and
international law). Rather than principled and law-abiding, their opposition to making the
right to SD more readily available seems cynical. They were unwilling to hold a referendum
themselves among other reasons because a large majority of Crimeans would have been in
94
See DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT 230 (2d ed. 2000) (“Whether and when a secessionist
movement will emerge is [sic] determined mainly by domestic politics, by the relations of groups and regions
within the state. Whether a secessionist movement will achieve its aims, however, is determined largely by
international politics, by the balance of interests and forces that extend beyond the state.”).
95
See generally, JÖRG FISCH, DAS SELBSTBESTIMMUNGSRECHT DER VÖLKER: DIE DOMESTIZIERUNG EINER ILLUSION (2010).
96
See also Michele Brandt, Jill Cottrell, Yash Ghai & Anthony Regan, Constitution-Making and Reform: Options for
the Process, INTERPEACE 299–305 (Nov. 2011), available at
http://constitutionmakingforpeace.org/sites/default/files/Constitution-Making-Handbook.pdf.
97
For example, “it is unlikely that iterations of the secession process will arrive at a result in which no individual is
required to go along with the associational preferences of those around him.” Patten, supra note 7, at 578.
98
favour of integration with Russia instead of staying with Ukraine. For its part, the voting
in Luhansk and Donetsk in November led separatists to declare sovereign governments in
the territories. While these were also rogue elections, it seems again that the territories’
99
residents preferred the pro-Russian rebels to the Ukrainian government.
I hope that through elaborating the alternative approach to help shift the onus onto those
among national and international political actors who reject it (or the like). Why, for
example, should the government in Kiev offer the Russian minority in the south and east
100
internal SD only and not put the country’s territorial integrity in question? Shouldn’t
“the real diversity, disagreement and desires of the actual existing people within that
101
state” be recognized rather than suppressed? It is these actors who should be required
to justify their approach in terms of the principles of SD and democracy.
98
See Rein Müllerson, Ukraine: Victim of Geopolitics, 13 CHINESE J. INT’L L. 133, 140 (2014) (noting that “[t]here is
no doubt that most Crimeans [. . .] welcome the reunification of the Crimea with Russia.”).
99
See Ukraine’s Separatists: Shrinking Country, ECONOMIST (Nov. 8, 2014).
100
Though not by federalization, which is “assumed to be a way station to secession.” Timothy William Waters,
Letting Go of Territorial Integrity: Getting Realism and Ideals Right on Ukraine, VÖLKERRECHTSBLOG (Jun. 16, 2014),
http://voelkerrechtsblog.com/2014/06/16/letting-go-of-territorial-integrity-getting-realism-and-ideals-right-on-
ukraine/.
101
Id.
The Idea of Early-Conflict Constitution-Making: The Conflict in

Ukraine Beyond Territorial Rights and Constitutional Paradoxes
By Zoran Oklopcic*
Abstract
Using the crisis in Ukraine and the annexation of Crimea as a foil, the aim of this article is
three-fold. First, it offers an internal critique of the influential answers that normative
theory and international jurisprudence provide to the paradox of constitutionalism.
Second, building on critical engagement with these approaches, this article mobilizes
constitutional theory to find a constructive response to the crisis in Ukraine that goes
beyond the prescriptions offered either by normative theory or international
jurisprudence. In doing so, it seeks to sketch a broad constitutional framework not for post
but rather for early-conflict constitution-making. The final aim of this article is to
contribute to a richer self-understanding of constitutional theory vis-à-vis its disciplinary
neighbors.
A. Introduction: The Crisis in Ukraine and the Paradox of Constitutionalism
With President Yanukovich safely on his way to Russia, the post-revolutionary Verkhovna
Rada adopted Law No. 4163, which restored the 2004 amendments to Ukraine’s
Constitution and, together with them, its parliamentary system of government. Most of
the other fundamental commitments in Ukraine’s Constitution remained the same,
including perhaps the most important among them: A commitment to the ideal of popular
sovereignty. As written in the original Article 5, “[T]he right to determine and change the
constitutional order in Ukraine belongs exclusively to the people and shall not be usurped
1
by the State.”
This intuitively attractive, commonsensical political claim—variations of which have been

entrenched in a number of modern constitutions—has increasingly been recognized as
question begging in contemporary constitutional theory. If it is true that “a [c]onstitution
*
Associate Professor, Department of Law and Legal Studies, Carleton University, Ottawa
(zoran.oklopcic@carleton.ca). This article profited from probing comments by Karlo Basta, Sujit Choudhry, Helena
Kolozetti, and the participants in the colloquium, “The Crisis in Ukraine: Between Law, Power and Principle”
hosted by the Miller Institute and the Center for Constitutional Transitions at the Berkeley School of Law on 13
February 2015. The usual disclaimer applies.
1
THE CONSTITUTION OF UKRAINE 1996, art. 5.
2015 The Idea of Early-Conflict Constitution-Making 659
2
constitutes the People who in turn constitute it,” we may be impelled to treat the very
invocation of the people—its constituent power and ultimate authority—not as a political
3
ideal, but rather as an “elaborate conjuring trick.” While the constituent power of the
people of Ukraine cannot be “usurped” by the State’s constitutional order, that very order
is the condition of the people’s existence. What is more, in defining the very identity of
“the people,” the constitution seems to prefigure and limit its fundamental political
choices. If that is indeed the case, how can we insist on the legitimacy of the claims of
peoplehood if they rely on an unacknowledged circularity? Committed to the idea of
popular self-government, constitutional theory appears incapable of answering which
came first: The “egg” of the Ukrainian people or the “chicken” of Ukraine’s Constitution.
The crisis in Ukraine is constitutional theory’s paradox.
Even if we insisted on the useful aspirational quality of the constitutional vocabulary of

peoplehood, we might still be driven to accept its uncomfortable implications. If a
“constitutionalized collective political identity is necessarily malleable and fluid,” the
4
constitutional form given to it “cannot be regarded as unassailable.” In that case, the
authority of constitutional form must rely on its “continuing capacity faithfully to reflect
5
that collective political identity.” But what happens to the authority of such a
constitutional order when a fluid and malleable identity fractures and disappears, and
competing political identities crystallize instead? What might “reflection” mean in that
context? At this point, constitutional theory becomes silent and incapable of arbitrating
between competing assertions of the constituent power by the peoples of Ukraine, Russia,
Crimea, Donetsk, and Lugansk.
From the vantage point of constitutional theory’s disciplinary neighbors, however, the
entire debate about constitutionalism’s paradox appears misconceived from the start.
Though normative theories of territorial rights are diverse and mutually conflicted, they
nonetheless offer concrete answers about which people has a right to establish an
6
independent constitutional order over which territory. Equally, international
2
Duncan Ivison, Pluralism and the Hobbesian Logic of Negative Constitutionalism, 47 POL. STUD. 81, 84 (199d9).
3
MARTIN LOUGHLIN & NEIL WALKER, THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 4
(2007).
4
Id. at 3.
5
Id.
6
Amandine Catala, Secession and Annexation: The Case of Crimea, 16 GERMAN L.J. 581, 602–03 (2015) (providing a
rare direct confrontation of that difficulty from the perspective of normative political theory, stating:
There is indeed, to some extent, some circularity at play in the idea

of self-determination and peoplehood, as several contributors to the
present volume note in the context of international law and of
constitutional theory, respectively: Self-determination presupposes
the very self or people that is supposed to emerge from it; the
jurisprudence offers justification for legal norms that enable us to endorse one assertion of
peoplehood over another. In doing so, both disciplines implicitly speak to constitutional
theory. In different ways and for different reasons, they unintentionally “solve” its central
paradox.
From the perspective of the inter-disciplinary division of labor, the crisis in Ukraine
presents not only a high stakes geopolitical conflict, but also a theoretical opportunity. It is
an occasion to confront three neighboring disciplines: Constitutional theory, normative
theory, and international jurisprudence. They all share a central part of their vocabulary—
“the people”—but they have yet to speak to each other.
Using the crisis in Ukraine, and specifically the annexation of Crimea as a foil, the aim of
this article is three-fold. First, it offers an internal critique of the influential answers that
normative theory and international jurisprudence give to the paradox of constitutionalism.
Second, this article mobilizes constitutional theory to find a constructive response to the
crisis in Ukraine that goes beyond the prescriptions offered either by normative theory or
international jurisprudence. In doing so, it seeks to sketch a broad constitutional
framework not for the “post,” but rather for early-conflict constitution-making. The final
aim of this article is to contribute to a richer self-understanding of constitutional theory,
7
which, while undergoing a “remarkable revival,” continues to suffer from an “identity
8
crisis” as “its point and method remain obscure.” In confronting it with its disciplinary
neighbors this article will try to sharpen its distinctiveness.
This article addresses these themes as follows: Part B offers a critique of the nationalist
theory of territorial rights. Part C focuses on the critique of the legitimate state theory of
territorial rights. While examining these two theories, the article engages the
understandings of moral rights to self-determination that enjoy most purchase not only
within disciplinary debates, but which also most faithfully correspond to how most
constitution constitutes the people that constitutes it. But I am not

sure that either logical or chronological priority is what ultimately
matters here. Rather, the issue is ultimately a normative one:
peoples rightfully exercising political self-determination. If what
results from the mutually constituting interaction between self and
determination (or between people and constitution) are institutions
that track the interests of the people they are supposed to
represent, then if there is any circularity, it is a virtuous rather than a
vicious one. And the relevant self or people will speak up to break up
the circle if it becomes vicious rather than virtuous: i.e., if it runs
counter to, rather than serves, the rightful exercise of political self-
determination.
7
Martin Loughlin, Constitutional Theory: A 25th Anniversary Essay, 25 OXFORD J. LEGAL STUD. 183, 183 (2005).
8
NICK BARBER, THE CONSTITUTIONAL STATE 2 (2010).
participants in the struggles on the ground understand their claims. Part D engages with
what I take to be the most promising and theoretically grounded defense of territorial
integrity in international jurisprudence. Building on the critique of the contributions of the
nationalist and legitimate state theories in Part E, I sketch a distinct perspective of
constitutional theory that embraces both the normative ideals hidden behind the
vocabulary of right, as well as the prudential justification for insisting on existing states’
territorial integrity, but proposes to mediate them in a different way. The article concludes
in Part F by offering an idea of constitutional theory’s relationship with the two disciplines
that surround it.
B. Nationalist Theory of Territorial Rights
For nationalists of different stripes, the idea that a nation has a right to a particular
territory is a potent and frequently used means to justify the legitimacy of territorial
claims. In Ukraine, the assumption of an ethnic nation’s territorial rights informs the claims
of every side in the conflict. Throughout the 1990s, various demands for regionalization of
Ukraine were habitually rejected by invoking the rights of the indigenous Ukrainian nation
9
over the “Ukrainian land.” More recently, Russian President Putin has used the same
10
vocabulary, calling Crimea sacred Russian land. Finally, for the representative of the Tatar
Mejilis in Crimea, the peninsula belongs to neither nation: It is “not Ukrainian land, it’s not
11
Russian land; [it] is Crimean Tatar land.”
Irrespective of its frequent association with radical nationalism, the vocabulary of a

nation’s territorial rights is one of the dominant ways to justify concrete claims of
territorial sovereignty in normative political theory. According to David Miller, a nation’s
moral right over a territory is generated through a sequence of acts whereby a nation
12
materially improves the land or endows it with symbolic meaning. Nations build
cathedrals and monasteries; its poets sing about localities that carry spiritual and political
importance for the nation’s self-understanding. Collectively, and over time, the members
of a nation clear the land, build dams, bridges, and irrigation systems, and as a result
acquire a territorial right over the land they have so transformed. These symbolic and
material acts provide the “ethical force” that justifies national jurisdiction over both the
13
territory and its physical shape.
9
ANDREW WILSON, UKRAINIAN NATIONALISM IN THE 1990S: A MINORITY FAITH 164 (1997).
10
Putin Assails West, Hails Crimea As “Sacred” Russian Land In Address, RADIO FREE EUR. RADIO LIBERTY (Dec. 4,
2014), http://www.rferl.org/content/russia-putin-address-west-crimea/26724829.html.
11
Fear Is In The Air Among Crimean Tatars, RADIO FREE EUR. RADIO LIBERTY (Mar. 2, 2014),
http://www.rferl.org/content/fear-is-in-the-air-among-crimean-tatars/25282748.html.
12
David Miller, Territorial Rights: Concept and Justification, 60 POL. STUD. 252, 258 (2012).
13
Id.
Nationalist theory, however, is inadequate for three main reasons. First, in many cases—
visible especially in Ukraine—it remains insensitive to complications that arise from
mutations in national self-consciousness. Second, it is incapable of justifying a nation’s
moral right over an integral territory. Finally, nationalist theory of territorial rights is
incoherent because for it to make sense in liberal democracies the claimant of the right—
an ethnic nation—must “die” in order for its recipient—the territorial people—to enjoy
that right.
I. Mutations in Political Sentiment and Historical Continuity
Like all political theories, nationalist theory of territorial rights rests on simplifications. It
postulates the existence of a national collective whose members across generations share
the same national consciousness. In some cases, this account of nationhood may raise no
practical difficulties: There are circumstances where national consciousness emerges early
and continues unaffected by long lasting political encounters with other nations or with
other larger imperial or federal structures. However, in most countries—especially those
plagued by conflict over territory—it is difficult to take the postulated historical continuity
of a nation for granted. For example, there is no way to objectively establish whether
present-day “ethnic” Ukrainians are truly the “heirs” to the medieval or early modern
Slavic population of present-day Ukraine, whose national consciousness had yet to be
developed during centuries of rule under the Kievan Rus and Polish-Lithuanian
Commonwealth.
In fact, the history of “material improvements” to land in a particular region may give rise
to politically salient but non-national identities, further undermining the simplistic
relationship between a putative trans-generational nation and its ongoing work to improve
the land. For example, the pattern of economic life in the mining region of Donbass—
located in Eastern Ukraine, and marked by the heritage of Soviet communism and a center-
periphery dynamic within an independent Ukraine—has contributed to a fluid regional
identity. While the region overwhelmingly supported independence in 1991, the
crisscrossing cleavages between ethnic, linguistic, and cultural identity have made the
advance attribution of a political—or national—identity to a discrete group almost
impossible.
As many commentators have already noticed, to assume that the territorial conflict in
Ukraine is a conflict between “Ukrainians” and “Russians” distorts the political reality
because Ukrainian citizens identify with various ethnicities, cultures, and political projects.
In Donetsk, for example, fifty-eight percent of the population has declared themselves
ethnically Ukrainian, thirty-five percent Russian, and six percent “Other.” In linguistic
terms, only ten percent of the population speak Ukrainian as their mother tongue, in
contrast to seventy-three percent Russian and ten percent “Other.” Finally, in cultural
terms, thirty-five percent of the population embrace Russian identity, twenty-one percent
14
Ukrainian, twenty-three percent Soviet, and ten percent “Other.”
The composite and fluid nature of the political identity of the population of the region,
however, does not mean that such a population cannot be decisively and quickly mobilized
toward the goal of territorial separation—something we usually attribute to
multigenerational “nations.” In fact, empirical research shows that the most reliable
predictor of political preferences and regional cleavages has not been ethnic or linguistic
affiliation, but rather the attitude towards momentous political episodes in Ukrainian and
15
Soviet history. An affirmative or negative view of the Bolshevik revolution, the
Holodomor, or Ukrainian statehood in the Second World War is the crucial polarizing
judgment that transforms fluid groups into “nations” for political purposes. Though there is
no reliable empirical research to corroborate this claim, it is reasonable to postulate that
what radicalizes these groups to begin making territorial demands are affronts made to
their views of particular historical episodes and not an enduring ethno-national sense of
collective political subjectivity.
This is a problem for the nationalist theory. Even in the absence of discrete “nations,”
territorial conflict may be real, and the grassroots political feelings that animate it can be
genuine. In cases where political antagonism has spatial contours, one of the politically
sensible solutions would be to reconfigure territorial control as part of a comprehensive
constitutional solution, the contours of which I will offer in Part E of the article. Unable to
identify the requisite “nation,” however, the nationalist theory remains silent before land
grabs and power politics.
II. The (Im)possibility of Territorial Integrity: The Palimpsest and the Patchwork
But even if we regarded the fluidity of political identities in Donetsk and Lugansk as an
anomaly, the nationalist theory of territorial rights would still be unable to offer an
account of a legitimate, spatially integral territory. The first reason arises from the complex
nature of multigenerational contributions to the material improvement of land. For
example, one could argue that material improvements in Ukraine after 1945 were enabled
by the military sacrifices made by all nations of the Soviet Union in their struggle against
Nazism. Even if we understood material improvement in a more narrow sense, in many
cases such improvement occurred through a morally ambiguous interaction between
members of different nations. For example, though many villages and towns in Crimea
14
Taras Kuzio, Nationalism, Identity and Civil Society in Ukraine: Understanding the Orange Revolution, 43
COMMUNIST & POST-COMMUNIST STUD. 285, 291 (2010).
15
See Ivan Katchanovski, Regional Political Cleavages, Electoral Behavior, and Historical Legacies in Post-
Communist Ukraine, in ASPECTS OF THE ORANGE REVOLUTION III: THE CONTEXT AND DYNAMICS OF THE 2004 UKRAINIAN
PRESIDENTIAL ELECTIONS 55 (Ingmar Bredies et al. eds., 2007).
were created over time though local Crimean Tatar effort, Marcin Broniewski—a sixteenth-
century Polish traveler and diplomat—reported that “the Tatars seldom cultivated the soil
themselves, with most of their land tilled by Hungarian, Ruthenian, Russian, and Walachian
16
(Moldavian) slaves.” In this case, nationalist theory cannot justify a territorial right of any
nation to a particular piece of land and would probably weaken—counter-intuitively from a
moral point of view—contemporary claims of Crimean Tatars to some form of territorial
jurisdiction in the peninsula. In any case, the vision of territory that emerges from the
vantage point of nationalist theory is that of a palimpsest: A surface inscribed by
competing claims, each one lying atop of the others. Intermixed and hardly legible, these
claims of right offer little useful guidance on how to resolve national conflict over
territorial sovereignty.
One way to attempt to rehabilitate the practical relevance of the nationalist theory is to be
as precise as possible about the territorial right’s object—a particular, small, and
identifiable piece of land that has been materially improved or symbolically marked. In the
context of determining territorial sovereignty over Crimea, one could propose that the
territory legitimately belonging to Crimean Tatars is not the Crimean peninsula as such, but
rather the actual mini-localities in its midst: The directly salient topography, cities,
mosques and architecture such as Qirim (Stari Krim), the ancient capital of the Crimean
Khanate, or Bakhchysarai, its subsequent capital, and other such localities. For Russians,
one such locality could be the city of Simferopol, much of which was built by the Russian
Empire after 1784. But even in this case, the territorial right is undermined by the fact that
Russians built on the site of a Tatar town, Aqmescit. By taking this road, we would have
circumvented the problem of the palimpsest only to encounter the problem of the
patchwork. The aggregate of these mini-territorial rights does not yield the expected
17
outcome: A state featuring “well-defined geographical limits.”
Additionally, it is also worth noting complications in the application of the nationalist

theory of territorial rights that stem from the symbolic contribution to the land—the
second component that lends nationalist theory its ethical force. According to most
nationalist theorists, nations have territorial rights over the lands that played a formative
role in the emergence of their nation’s identity. The existence of such territories should,
according to Tamar Meisels, be objectively verifiable through a “historiographical
18
inquiry.” Apart from the epistemic difficulties in actually determining what counts as a
national formative territory, this argument leaves ample room for political manipulation.
While Russia was content to guarantee Ukraine’s territorial integrity in 1994, in 2014,
16
Mikhail Kizilov, Slave Trade in the Early Modern Crimea from the Perspective of Christian, Muslim, and Jewish
Sources, 11 J. EARLY MOD. HIST. 1, 10 (2007).
17
DAVID MILLER, NATIONAL RESPONSIBILITY AND GLOBAL JUSTICE 214 (2009).
18
TAMAR MEISELS, TERRITORIAL RIGHTS 40 (2005).
President Putin suddenly realized the paramount formative role of Crimea in Russian
history:
Start with the fact that for Russians–and I mean the

ethnically Russian part of our multinational people, the
Christian Russian people–[Crimea] is a sacred place. In
Crimea in Chersonesus Prince Vladimir [Sviatoslavich
the Great] was baptized, and then he converted Russia.
19
The original baptismal font of Russia is there.
In terms of nationalist theory, however, what justifies a right to formative territories is

ultimately not the sheer fact of such territory’s existence. Rather, what does the normative
20
work is the existence of “intense individual interests held by members of nations” not to
21
be “in a state of pining and longing” and not to experience a sense of “deprivation as a
22
result of the injustice inflicted upon them in the past.” In the Crimean context, invoking
longing and injustice has disturbing implications. It would require us to measure—quite
impossibly—which nation, Russia or Ukraine, cares more about having sovereignty over
Crimea. Equally, it would delegitimize the claims of other nations whose culture-specific
relationship with the land fails to conform to Western political preconceptions.
By the same token, judging “deprivation” that results from past “injustice” is equally
challenging. Some theorists, such as Jeremy Waldron, have suggested that there ought to
be a “moral statute of limitations” that would cause the just expiration of certain territorial
23
claims. But drawing such a cut-off line is destined to be arbitrary and self-serving.
Imperial Russia and the Soviet Union caused the exodus of the Crimean Tatars in the late
eighteenth and nineteenth centuries, and again in 1944, following the withdrawal of Nazi
forces. But it is unclear why we should limit the analysis to injustices only committed by
Imperial Russia. From Meisels’s and Miller’s arguments, one could equally derive the claim
that historical injustices against Tatars should be mitigated against the Crimean Khanate’s
own prior injustices against the Slavic population. Again, nothing concrete follows from the
vocabulary of a nation’s territorial right that would enable us to determine the
jurisdictional extent and spatial shape of one nation’s territorial control.
19
“Crimea Cradle of Russian Christianity”: Key Quotes from Putin’s Meeting with Historians, RUSSIA TODAY
(November 8, 2014), http://rt.com/news/203467-putin-speech-crimea-wwii/.
20
MEISELS, supra note 18, at 35.
21
See id. at 40.
22
See id. at 60.
23
Jeremy Waldron, Superseding Historic Injustice, 103 ETHICS 4 (1992) (opposing the idea of the moral statute of
limitations); see generally Rodney Roberts, The Morality of the Moral Statute of Limitations on Injustice, 7 J. ETHICS
115 (2003) (addressing the question of whether a statute of limitations on injustice is morally justified).
III. Who’s the Boss?: The Nation’s Territorial Right as a Performative Contradiction
This incapacity to justify integral territories further undermines hopes that the vocabulary
of a nation’s territorial rights will be productively used where it is most needed: To resolve
territorial conflict. A conceptual problem inherent in the vocabulary of national territorial
rights is that its bearer—a pre-political nation—magically disappears whenever it wishes,
giving rise to the new bearer of authority in a newly created polity: The territorial people.
What gives rise to this performative contradiction? Why insist on the idea of a nation’s
right to territory if they are obviously self-contradictory, at least within the framework of
liberal democracy? The only reason to do so seemingly lies in the combination of implicit
political ideals and anxieties that animate our desire to use the vocabulary of nationhood
to solve territorial conflict.
The solution of this conflict is perpetually over- and under-inclusive. No matter how we
draw territorial boundaries, there will always be unwilling minorities trapped within
them—Ukrainians or Crimean Tatars—and minorities willing to be included in a nascent
polity but who have been excluded from it—for example, Russian speakers in the rest of
Ukraine. Irrespective of how we draw boundaries, both the members of what is to become
a national majority in a given territory—the initial claimant of a territorial right—as well as
the national minority must be included in a new polity on equal terms.
The performative contradiction arises when we wish to reconcile our commitment to

collective political subjectivity at the moment of foundation with the idea of political
equality in the period that follows it. There would be no performative contradiction if we
did not remain committed to the idea that a pre-institutionalized collective agent,
exercising its territorial right—or constituent power, if we approach it from the perspective
of constitutional theory—founds a territorial order, which must feature political equality
among all included who continue to govern themselves within a bounded territory. As a
result, the claimant of a territorial right—a pre-political ethnic nation—and the recipient of
a territorial right—an a-temporal territorial people—present themselves with two
qualitatively different collective subjects. Thus, to obtain its territorial self-determination, a
pre-institutional ethnic nation must first symbolically “die.” Or, to put it formulaically:
An inescapable individual over-inclusivity in the formation of a polity +

the desire to maintain the idea of collective self-government during the
act of political foundation + the imperative to represent citizens’ political
equality after the act of constitutional founding
= qualitative, but contradictory change in collective political subjectivity.

While nationalist approaches to territorial rights are not capable of solving this problem
theoretically, in practice there has not been a shortage of rhetorical attempts to reconcile
the tension between nationalist territorial rights and equal dignity between citizens and
groups. Putin’s presidential address commemorating the entry of Crimea and Sevastopol
into the Russian Federation is one such example. In that address, Putin mixed the right of
Crimean Russians to effectuate the return of Crimea to Russian sovereignty with the
24
national equality of Russians, Ukrainians, and Crimean Tatars. However, he also
repeatedly referred to “the residents of Crimea” as the body of citizens—a body
qualitatively different from Russians, Ukrainians, or Tatars—who “for the first time in
history were able to peacefully express their free will regarding their own future” and join
25
Russia.
Juggling contradictory statements about the bearer of territorial rights is one way to gloss
over the problem of performative contradiction involved in invoking a nation’s territorial
rights. These rhetorical maneuvers suppress an inconvenient truth for nationalist theorists:
There are true “owners” of the national territory, pre-political nations, who are the bearers
of a territorial right and who, in a new polity, continue to act as landlords to minority
tenants, whose rights to the part of the territory are inferior, derivative, and revocable. In
many countries, this has a toxic effect in daily political life: Minorities are constantly put in
their place by being reminded who the land and country truly belong to. Though Ukrainian
politicians continue to balance their commitments to ethnic Ukrainian cultural hegemony
with their respect for minority linguistic and political rights, important political and
paramilitary organizations associated with the government continue to understand
Ukraine’s territory as rightfully belonging only to the Ukrainian ethnic nation.
26
Though such platforms have been relatively marginal in post-communist Ukraine, the
potential of unaddressed incoherence of nationalist theory to contribute to daily political
humiliations of minority groups may be one of its subtle but serious political implications.
More importantly, its unaddressed incoherence may prolong political sentiments that
justify the refusal to negotiate constitutional settlements that would include power
sharing, federalization, or territorial reconfiguration, as a matter of principle.
C. The Legitimate State Theory of Territorial Rights
The main competitor to the nationalist theory is the legitimate state theory of territorial
rights. Its appeal is not only theoretical. Its traces are also visible in the public discourse
24
See Program of Petro Poroshenko Bloc (Aug. 27, 2014), http://solydarnist.org/?page_id=874.
25
Address by President of the Russian Federation, PRESIDENT OF RUSSIA (Mar. 18, 2014),
http://eng.kremlin.ru/news/6889.
26
ROMAN SOLCHANYK, UKRAINE AND RUSSIA: THE POST-SOVIET TRANSITION 145 (2001).
about the legitimacy of territorial change in Ukraine. Going beyond simply decrying the
illegality of the Russian act of annexation, the leaders of Germany and the United States,
for example, have used the morally charged metaphor of “stealing” or “theft” to condemn
27
Russia’s act, assuming that the entirety of Ukrainian territory is its property.
The territorial right, according to Anna Stilz, belongs to a legitimate state that effectively
implements a system of law, grants “the people” a voice in defining them, is not a
“usurper,” and whose subjects have a legitimate claim to occupy the territory of the
28
state. Such a state has a moral right to territorial integrity. According to Stilz, during the
existence of such a legitimate state, the people is not the actual bearer of the territorial
29
right, but rather an imaginary “ward” under the “guardian” state’s custody. But when
such a legitimate state is “unjustly annexed by foreigners” or is “dismembered by
rebellious domestic forces,” the people of such a state emerge as the bearer of the
residual territorial right to restore the extinguished statehood. Such a people is defined by
two features. First, it has established “a history of political cooperation together by sharing
a state”—legitimate or otherwise—in the recent past. Second, it “possesses the ability to
30
reconstitute and sustain a legitimate state on their territory today.” Superficially,
attributing territorial right to (the people of) a legitimate state circumvents the difficulties
of the nationalist approach. Because it already assumes a territorially integral jurisdiction,
this approach is not concerned with which group should exercise sovereignty over which
piece of territory when different groups’ labor mixed under diverse historical
circumstances. Though it evades some of these difficulties, this approach is problematic for
three main reasons.
First, it fails to legitimize the territorial status quo in cases where contemporary sovereign
states historically exercised their power in illegitimate ways. Second, the very idea of
“historical cooperation” among members of a state’s population is too vacuous to justify
the maintenance of territorial integrity, even if it is assumed that there has been such a
27
Tony Paterson & Peter Foster, Ukraine Crisis: Angela Merkel Accuses Putin of “Stealing” Crimea, THE TELEGRAPH
(March 12 2014), http://www.telegraph.co.uk/news/worldnews/europe/ukraine/10692259/Ukraine-crisis-
Angela-Merkel-accuses-Putin-of-stealing-Crimea.html; Daniel Hurst, Australia Imposes Sanctions on Russia After It
“Steals” Crimea from Ukraine, THE GUARDIAN (March 19, 2014),
http://www.theguardian.com/world/2014/mar/19/australia-imposes-sanctions-on-russia-after-it-steals-crimea-
from-ukraine; Russia's Duma Ratifies Crimea Annexation, RADIO FREE EUR. RADIO LIBERTY (March 20 2014),
http://www.rferl.org/content/russia-annexation-crimea-ratification/25304008.html; Sergey Lavrov, Foreign
Minister, Ministry of Foreign Affairs of the Russian Federation, Speech and Answers to Questions at the 349th
Extraordinary Session of the Federation Council of the Federal Assembly of the Russian Federation (Mar. 21,
2014).
28
Anna Stilz, Nations, States, and Territory, 121 ETHICS 572, 578 (2011).
29
Id. at 579.
30
Id. at 591.
legitimate state. Lastly, as a result, this theory is incapable of answering the so-called
annexation objection on its own terms.
I. Tainted State Legitimacy
It should be noted at the outset that the legitimate state’s theory of territorial rights is
plagued by an implicit circularity similar to that detected in constitutional theory. In
assuming the right of the state’s people to restore the state’s territorial integrity, it derives
the legitimacy of that people from the existing state’s boundaries. Because this theory
does not offer explicit guidance about the redrawing of territorial boundaries—but only
about their restoration—the question of a territorial right turns on our judgment of what
constitutes “usurpation,” a “legitimate claim to occupy the territory,” and “injustice” in
annexation. Without such a judgment, this theory, like contemporary constitutional
theory, would be unable to arbitrate between competing assertions of non-nationalistic
territorial rights. Using a similar non-nationalist justification, the official remarks of the
Russian foreign minister Lavrov, for example, recognized the right of “all the Crimean
population” to determine the political status of Crimea. Though not articulated in the
vocabulary of territorial right, this view assumed that the territory of Crimea is the object
of the Crimean people’s territorial right.
If we simply relied on the norms of positive international law, which guarantee territorial
integrity to existing sovereign states, this assumption would be easy to defend. Within the
ambit of the legitimate state’s theory of territorial rights, however, we cannot do this.
Unless we understand the legitimate state theory as one that justifies the contemporary
international legal order in its totality—and from which, derivatively, spring the territorial
rights of particular independent states—we would need to look into the specific grounds
for legitimacy of each individual state whose boundaries come into question.
And here things get complicated. In her critique of the statist-popular theory, Ayelet Banai
argued that many contemporary states emerged as the heirs of colonialist, despotic, or
authoritarian regimes. In such cases, there is no reason to treat them as legitimate bearers
31
of the right to territorial integrity. We could likewise reach this conclusion in the case of
Ukraine if we treated it as an “heir” of the undemocratic Russian Empire and the Soviet
Union. But even if we were to reject this claim—and accept that Ukraine was one of the
victims of Russian tzarism and communist oppression—we would still have difficulties
justifying, within the ambit of the legitimate state theory, the moral claim of the “theft” of
Crimea. In the Crimean case, Russia made the reverse argument. It claimed that the
annexation of Crimea was the reversion of the initial theft because it was an undemocratic
decision by an autocratic communist regime, which in 1954 reassigned the sovereignty of
31
Ayelet Banai, The Territorial Rights of Legitimate States: A Pluralist Interpretation, 6 INT’L THEORY 140, 144–46
(2014).
Crimea from the Russian SSR to the Ukrainian SSR in the form of an internal territorial
cession. While technically legal, the Soviet Politburo’s political “gift” lacked democratic
legitimacy.
It is worth noting that the legitimate state theory is incapable of refuting the Russian
response because of its own inherent weakness and not from its concrete affirmation of
Russia’s territorial claim. In fact, most of Russia’s own internal and external boundaries
have been morally tainted by acts of oppression and violence and there are many
instances where contemporary Russia profited from the historically undemocratic inclusion
of unwilling regions, such as Chechnya, Dagestan, or Tatarstan. In assuming the legitimate
political history of existing states, this theory delegitimizes not only a Ukrainian claim to
territorial integrity, but also that of many countries around the world, including Russia.
II. Spuriousness of Historical Cooperation
The legitimate state’s theory of territorial rights uses the people to describe a collective
agent vested with the “residual claim” to restore its sovereignty over the portion of its
state that is unjustly taken from it. Stilz derives the identity of the people from a pattern of
historical cooperation and sharing of the state, which manifests itself in the activities of
32
obeying the law and paying taxes. Such understanding of cooperation, however, puts the
legitimate state theory in a bind. On the one hand, if cooperation is understood as mere
compliance with the demands of the state, the very idea of the people would be
superfluous. It would suffice to say that legitimate political regimes have the right to re-
establish territorial status quo ante. This, however, would bring us back to square one:
Such an answer would still be incapable of offering an account of the legitimacy of a
particular territorial status quo. On the other hand, we may argue that cooperation implies
a degree of actual intentionality, including not only a purposive activity—inmates
cooperate with wardens, too—but a purposive activity performed out of an appreciation
that individual acts of cooperation contribute to a worthy collective goal.
It is curious then that paying taxes is singled out as a representative example of such an
activity. In many countries, citizens not only actively engage in tax evasion, but often justify
their behavior on ethical grounds. Empirical research shows, for example, that citizens in
Ukraine tend to justify tax evasion if “the tax system is unfair,” if “a significant portion of
the money collected winds up in the pockets of corrupt politicians or their families,” or if
“the government discriminates against me because of my religion, race or ethnic
33
background.” While hardly unique to Ukraine, such findings demonstrate that the
assumption of cooperation is problematic not only given the diversity of attitudes
exhibited towards seemingly flagship cooperative activities, but also in light of the actively
32
Stilz, supra note 28, at 592.
33
Irina Nasadyuk & Robert McGee, TAX EVASION IN UKRAINE: A SURVEY OF OPINION 1, 5, 10 (2006).
anti-cooperative sentiments of an important part of the population. A similar point could

be made with regard to “obeying the law.” Some people obey mindlessly, while others
obey because they have a vague idea that not doing so could cause anarchy or would set a
bad example, encouraging free-riding on the efforts of others. None of these reasons,
however, are country-specific and can justify a wide variety of territorial reconfigurations.
The diversity of attitudes towards what Stilz understands as acts of cooperation

undermines her conceptual reliance on the people and its residual right to re-establish
territorial sovereignty. Ironically, in fact, the acts of political cooperation—understood as
such among the cooperators themselves—are most frequent and most intense when a
politically mobilized group acts antagonistically towards the current constitutional order.
Organizing a referendum, canvassing for political support, keeping guards on the roads,
such as in Crimea, Lugansk, or Donetsk, for better or worse, are more compelling examples
of mindful political cooperation than habitual compliance of a disgruntled political minority
within a state they do not wish to belong to.
However, Stilz makes an important argument that supports the restoration of the
territorial status quo ante, but this argument has little to do with positing the existence of
a legitimate people’s “residual territorial right” to recreate its state. Instead of moral or
conceptual grounds, her strongest argument is ultimately prudential. After discussing
alternative non-statal patterns of political cooperation, Stilz admits that “authoritative
legal institutions are so difficult to establish, and because justice depends upon them, a
34
group’s political tradition therefore has significant value.” Stilz is correct that the
difficulty of switching between one pattern of territorial cooperation from one state to
another should not be dismissed lightly—something grimly testified by the violent birth of
the self-proclaimed Lugansk and Donetsk Popular Republics.
III. The Annexation Objection
One distressing implication of the critique of legitimate state theory is that it leaves us with
no response to the so-called annexation objection. Ironically, the theoretical difficulty with
this counter-factual scenario was first raised several years before the annexation of
Crimea. Its challenge is simple: If there were no legitimate “peoples of states” vested with
the right to re-establish sovereignty over an annexed portion of their territory, how would
we explain our resistance to peaceful annexation of a territory and its inhabitants by a
democratic and fair polity, which would guarantee its new citizens every right of political
participation and would treat them with equal respect regardless of their previous
nationality? If the criteria for a state’s legitimacy are ultimately a-contextual, why does it
34
Stilz, supra note 28, at 594.
matter to which state a particular population or territory belongs if the annexing state is
35
equally legitimate?
As it is posed in the literature, the annexation objection assumes that the annexing state is
a wholly legitimate liberal democratic polity. In the case of Russia, we cannot make this
assumption. But tackling the annexation objection is nonetheless illuminating. As I will
later argue, it is worth asking the question: What if Russia were an exemplary democratic
state when it annexed Crimea? Would such an act be considered morally illegitimate, even
if there were no people vested with residual territorial rights?
While I believe it would, my answer is more complex than that offered by the legitimate
state theory as it requires us to distinguish between two scenarios. The first concerns the
unlikely peaceful annexation of territory featuring a population whose allegiance is
dominantly hostile to the change of sovereignty. The rejection of annexation in this case is
highly intuitive, but it rests on a different justification than the one provided by Stilz’s
theory. It requires us to ask a more finely grained question: What happens to individual
voluntary political allegiances when we compare the territorial status quo ante with the
new territorial status quo? In posing this question we realize that the reason why such
annexation is illegitimate is not because a putative “people’s” territory has been truncated,
but because the aggregate degree of allegiance to a political community has decreased
following annexation in comparison to the status quo ante. Thus, a greater number of
people in the territory of reconfigured states are now forced to live in a political
community to which they do not have allegiance. Faced with a choice—where all other
relevant factors are the same—territorial changes should strive to achieve political
outcomes that increase the satisfaction of individual political attachments and reject those
that do not. Therefore, this new answer presents itself once we re-imagine peoples as
proxies for the aggregates of individual political allegiances, instead of understanding them
as collectives vested with moral rights.
The second scenario is more disturbing, as it is more similar to present-day Crimea. In this
case, the aggregate degree of allegiance to a political community has actually increased.
Instead of roughly 2 million Crimeans who were dissatisfied with the status quo
distribution of sovereignty prior to 16 March 2014, their peaceful incorporation into Russia
improves the aggregate degree of political allegiance—even excluding the Crimean
Tatars—over the entire reconfigured territory of Russia-Ukraine. Ukrainians will still be
dissatisfied with this solution, having experienced humiliation with the loss of territory
they perceive as theirs. But such feelings will not affect their political attitude towards
Ukraine—the country they want to belong to in the first place. In fact, the degree of
consent to Ukraine among Ukrainian citizens—now without Crimea—improves in relation
to the territorial status quo ante. And such aggregate improvement—as I have argued
35
See id. passim.
elsewhere—is a suppressed ideal behind all territorial changes ushered in the name of self-
determination, irrespective of whether we envisage the bearer of the right to self-
36
determination as a territorial or an ethnic people.
But our moral intuitions rebel against annexations, even in cases that would yield a
territorial configuration where more people end up in states they want to belong to. It is
possible to provisionally defend those intuitions even without the help of the legitimate
state theory on two grounds. First, even if the idea of a people’s residual moral rights to
territory is unpersuasive—as previously argued—this does not mean that the citizens of
pre-war Ukraine do not have legitimate interests in participating in the process leading to
the change in the political status of Crimea. These legitimate interests may or may not
amount to a right to take part in a referendum on the status of the peninsula itself, but
they would merit at least a voice in the process leading to it, as well as in negotiations that
would have arguably followed. Second, even a peaceful annexation would deny the
unwilling minorities-within-minorities, such as the Crimean Tatars, a seat at the table as
agents. Not only would they be denied as objects of the constitutional change, but also
they may or may not be granted extensive minority rights after the fact of annexation.
Under this annexation scenario, they are treated as objects of someone else’s political will
37
and not as participants in the political process that determines the status of the territory.
This is an important objection, especially if we agree that application of the people’s will
conceals an improvement in the aggregate satisfaction of willful political allegiance to a
polity.
These arguments against the second scenario are provisional because an imagined
inclusive and democratic Russian occupier could have, in theory, taken steps to address
them and increase the legitimacy of its own actions. Together with the de-facto Crimean
authorities, Russia could have delayed the referendum, opened up the political process to
voices from the rest of Ukraine, and ultimately acknowledged Tatar demands for territorial
autonomy within Crimea. These actions could be part of a comprehensive constitutional
settlement that would include the transfer of sovereignty of Crimea to Russia. Had Russia
done so, normative political theory would prove a far less useful basis on which to reject
36
See Zoran Oklopcic, Farewell to Rhetorical Arms: Unraveling the Self-Determination of Peoples, in RECOGNITION
VERSUS SELF-DETERMINATION: DILEMMAS OF EMANCIPATORY POLITICS 101 (Avigail Eisenberg et al. eds., 2014).
37
See Steven Wheatley, Modelling Democratic Secession in International Law, in NATIONALISM AND GLOBALISATION:
NEW SETTINGS, NEW CHALLENGES 32 (forthcoming 2015) (arguing the peoples of Crimea, Donetsk and Lugansk do not
have a right to secede,
not because those populations do not have a right to self-

determination or must subject themselves to the authority of the
Ukrainian State, but as a consequence of the failure of the
authorities and the populations to engage in reasoned, democratic
deliberations concerning the allocation of political authority in the
region).
the annexation of Crimea. Irrespective of its inconsistencies, the nationalist theory of

territorial rights would have been sympathetic to it. Given its problematic conceptual
assumptions, the legitimate state’s theory could not consistently defend the territorial
integrity of Ukraine. For a more compelling normative reason in favor of Ukraine’s
territorial integrity, we must look elsewhere.
D. International Jurisprudence: Bounded Pluralism and the Tacit Calculus of Suffering
A more compelling way to offer a strong normative defense of Ukraine’s territorial

integrity is to look at the big picture. In the context of struggles over territory, concern with
the big picture emerges most strongly not in normative theory, but rather in international
jurisprudence. The reason why Ukraine’s “people” has a right to demand the preservation
of the territorial integrity of Ukraine is not because its members have engaged in material
improvements to the land or because they have engaged in historical cooperation. The
reason for postulating both the existence of a sovereign people and the territorial integrity
of its state stems from larger political ideals and prudential anxieties that concern the
world, not just Ukraine.
For Brad Roth, the constellation of those political ideals and prudential anxieties is
captured under the name of “bounded pluralism:” A name for a vision of international
order that provides respectful accommodation of ideological differences among sovereign
38
states. As a result, “internal” self-determination cannot be interpreted as providing a
recipe for the establishment of a particular constitutional order in a sovereign state.
International law as an embodiment of bounded pluralism has no preference for either a
unitary, federal, or confederal Ukraine. Rather, internal self-determination is best
understood “with much irony but little exaggeration, as a right of territorial populations to
39
be ruled by their own thugs and to fight their civil wars in peace.” Likewise, bounded
pluralism denies the right of minority populations to “external” self-determination. While it
does not require them to submit to the will of the central government—hence “fight civil
war in peace”—it provides them with no legal entitlement, even in cases where they are
severely oppressed. By the same token, the ideal of bounded pluralism provides support
for the principle of non-intervention that requires external powers to refrain from
interfering in domestic power struggles or recognizing entities and territorial changes that
have come about through the violation of peremptory norms of international law.
While Roth’s conceptualization of self-determination does not call for global ideological
diversity, it can nonetheless be read as an implicit normative argument that demotes
nationhood from the place of a privileged source of state’s legitimacy. For Roth, “[National]
38
BRAD R. ROTH, SOVEREIGN EQUALITY AND MORAL DISAGREEMENT: PREMISES OF A PLURALIST INTERNATIONAL LEGAL ORDER 81
(2011).
39
Id.
culture is not worthy of special standing, analytically independent of, and morally
40
privileged over garden-variety ideological difference.” Cultural arguments are especially
suspicious as they privilege “traditional-hierarchical non-liberalism [over] revolutionary-
41
egalitarian non-liberalism,” which may silence “local liberal dissidents.”
Roth’s relative agnosticism about the sources of state legitimacy, however, must be
complicated in light of his own fragmentary and speculative—but nonetheless
discernible—acknowledgment of the relevance of individual constituent attachments.
Writing about the application of self-determination in the context of decolonization, for
42
example, he portrays it as remedying the international order’s “original sin.” Equally,
though he argues that there are no shared understandings about the “assumption of
popular sovereignty” across ideological divides within existing states, he suggests that the
proponents of radically different ideologies within those states “may hold common
understandings of a constitutional compact that is binding by virtue of express, tacit, or
43
imputed consent.” While the international order has a strong preference for territorial
status quo, Roth also mentions the hope that “collectivities encompassing the permanent
populations of existing territories regard themselves, or will come to regard themselves, as
44
‘nations.’” Moreover, he suggests that the effective control doctrine can be interpreted
to embody respect for the self-determination of diverse political communities as to which
45
empirical investigation to ascertain public opinion is most often impracticable.” Finally,
even in the case where the population has grudgingly “made their peace with an unwanted
regime,” it may still “plausibly prefer” and “demand” the respect for the international
46
subjectivity of the existing state.
It is worth insisting on these disparate and tentative remarks as they together suggest the
presence of a suppressed moral and political ideal that unites them all—the respect for
individual constituent attachments and the improvement in the degrees of their
satisfaction, as part of the process of state formation. The strongest reason why we
continue to see colonialism as “original sin”, for example, lies not in the economic
exploitation of African, Asian, and Latin American natural resources. Instead, it consists in
the destruction of pre-existing polities, violating—in the process—the political attachments
40
Id. at 100.
41
Id.
42
Id. at 184.
43
Id. at 274; see also, supra note 14.
44
ROTH, supra note 38, at 24.
45
Id. at 204.
46
Id. at 205.
of those polities’ populations. By the same token, the fact that the notion of “consent”
may indeed be shared across ideological divides shows that there is a criterion that can
help us disentangle otherwise mutually incommensurable territorial claims. Equally, the
fact that we “hope” that the distinct collectivities encompassed within existing states will
voluntarily change their mind and decide to belong to existing, territorially incorporated
nations suggests that the willful allegiance to a polity is an underlying—if suppressed—
aspiration behind popular sovereignty, and one of the unacknowledged “premises of
international legal order.” Also, Roth’s speculation that effectivity is a proxy for self-
determination of diverse political communities suggests that effectivity is not ideal in and
of itself, but rather is the second best tool for ascertaining the existence of “self-
determination.” In this case, however, we cannot rely on effectivity to define self-
determination. Instead, we must inquire what self-determination ultimately means. The
suggestion again comes from Roth’s juxtaposition between “making peace” with an
unwanted regime and “plausible wishes” about preserving existing state’s sovereignty.
Calling those wishes plausible in this context with that juxtaposition only makes sense if
they are comparably more voluntary than the sheer reconciliation with the unwanted
government.
Though the presence of “consent,” “plausible wishes,” and voluntary identification

(“regarding themselves”) all appear to suggest that individual constituent attachments play
a role even in Roth’s argument, we should not too hastily argue that Roth likewise
embraces them as a normative ideal behind self-determination. The fact remains,
however, that wherever self-determination is applied to a territorial conflict—either as a
political ideal, legal principle, or a legal right—the degree of satisfaction of individual
constituent attachments over the entire reconstituted territory has always improved in
relation to the territorial status quo ante. This suggests—at the very least—that aggregate
improvement is not simply a coincidental byproduct of self-determination’s application,
but rather intimately related to self-determination’s function. While Roth’s suggestions
prevent us from confidently reading suppressed normative content into his argument, they
nonetheless strongly suggest that “aggregate improvement” is at least of prudential value
47
when it comes to drawing boundaries of nascent polities. Even if it were devoid of
normative content, an aggregate improvement in the satisfaction of intense local wishes is
intuitively of practical importance. When new states have a robust public support, they
contribute to their own viability, as well as to the stability of the international order.
Outside of his doctrinal exegesis, nothing in the preceding discussion justifies Roth’s
insistence on the preservation of territorial integrity of sovereign states. If we are not
committed to global ideological diversity, there is no reason not to intervene to promote
liberal democracy among oppressed, territorially concentrated minorities. The strongest
47
See Russell A. Miller, Self-Determination in International Law and the Demise of Democracy? 41 COLUM. J.
TRANSNAT'L L. 601, passim (2003) (providing a skeptical account of the democratic promise of self-determination).
argument for territorial integrity and prescriptively “empty” self-determination is not

normative, but prudential. It is implicitly present in Roth’s argument against the
“evolution” of the right to self-determination and humanitarian intervention. An “evolved”
right to self-determination might encourage minorities to militarily provoke the state in
hope that the state’s repressive response will be disproportionate, and thus delegitimize
that state in the eyes of international public opinion and make external intervention
48
easier. External interveners usually have mixed motives, which has led them to use “cut-
rate and irresolute methods that leave the situation worse off than it was before the action
49
was undertaken.” For example, though aerial bombing may be a comparatively safe
policy option for interveners than a ground invasion, it nonetheless may exacerbate, rather
than mitigate, human suffering.
Though Roth concedes that we may live in a world with “too little intervention,” he claims
that “it does not follow that broader licensing of intervention would occasion more of the
50
right measures in the right places.” But it also does not follow that it would not. From the
vantage point of international jurisprudence, this is probably an impossible empirical
judgment to make, as it implies conjuring alternative universes where the intervention and
51
its concrete outcomes did or did not happen.
In that case, it may be that the best argument in favor of the norm of territorial integrity
and prescriptively “empty” self-determination comes neither from normative theory nor
international jurisprudence, but from another discipline altogether. According to
comparative political scientist Tanisha Fazal, there is strong empirical evidence of a
52
correlation between the “norm against conquest” and the probability of state survival.
Territorial integrity—the contemporary norm against conquest—has dramatically reduced
the number of externally inflicted violent “state deaths” since 1945. In contrast, the period
between 1819 and 1945 amounted to more than sixty percent of all violent state deaths,
most of which occurred among the buffer states, which were subject to the rivalry of great
53
powers. Given the beneficial effects of the norm against conquest, Fazal argues that the
norm against conquest should be aggressively defended not only in the most egregious
48
49
See id. at 127.
50
See id.
51
See Thomas Franck, Humanitarian Intervention, in THE PHILOSOPHY OF INTERNATIONAL LAW 531 (Samantha Besson &
John Tasioulas eds., 2010) (providing an example of such a debate that under the cloak of juridical and normative
judgments features a comparative calculus of human suffering and a dispute about what is the relevant time
frame for judging the legitimacy of humanitarian intervention); see also Danilo Zolo, Humanitarian Militarism?, in
THE PHILOSOPHY OF INTERNATIONAL LAW 549 (Samantha Besson & John Tasioulas eds., 2010).
52
TANISHA M. FAZAL, STATE DEATH: THE POLITICS AND GEOGRAPHY OF CONQUEST, OCCUPATION AND ANNEXATION 230 (2011).
53
Id.
54
cases, but everywhere where it is violated “at the edges.” The subtle prudential intuition
that animates Roth’s jurisprudential argument thus receives its empirical support.
Irrespective of its support for the substance of Roth’s juridical argument, however, this
defense of the norm against conquest must be complicated. As Fazal recognizes, this norm
55
may be implicated in the faster pace of state dissolutions. Also, there is a possibility that
the norm against conquest is causally related to an increase in “state failure,” which should
56
lead us to question the wisdom of the norm against conquest. In qualifying her support
for the norm against conquest, Fazal joins scholars from other disciplines who have already
observed the ideological benefits that a norm against conquest—justified by the idea of
popular sovereignty and self-determination—brings to the United States when they violate
57
sovereignty of other states.
E. Beyond Moral and Juridical Rights: The Promise of Constitutional Theory in Ukraine
The critique of national and legitimate state theories of territorial rights has uncovered
ideals behind the application of self-determination in situations of territorial conflict: A
respect for individual constituent attachments and an imperative of improving their
aggregate satisfaction. In the context of the nationalist theory, this claim needs no
particular confirmation: When territories are reassigned in the name of nationhood, this
results not only in that nation’s territorial sovereignty, but also—at a deeper level—in
increased satisfaction among all of its members concerning their individual political
58
status. Though less immediately visible, the same principle can be unearthed from the
prescriptions of legitimate state theory. With the idea of “historical cooperation”
discredited in Part C.II, the best way to reject annexations has been to point to the
undesirable changes annexation produces in the degree of aggregate satisfaction of
constituent attachments. My critique of Roth’s defense of territorial integrity and
prescriptively empty self-determination has, equally, uncovered traces of respect for the
same ideal.
As asserted above, the best argument in favor of territorial integrity and “empty” self-
determination is empirical. Insisting on Ukraine’s territorial integrity—and by implication,
on the sovereignty of “the people of Ukraine”—makes most sense not if we embrace
54
Id. at 239.
55
Id. at 232.
56
Id. at 234.
57
Id. at 234–35; see also ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW 279 passim
(2004).
58
I am convinced this would occur even if the shape of a territory were readjusted to include localities—
historically important members of the nation, currently not a part of it.
Roth’s juridical worries, which ex hypothesi cannot be falsified, but if we embrace the
results of empirical research which implicates today’s iteration of the “norm against
conquest” (territorial integrity) in the sharp—and welcome—decrease in “violent state
death” and consequently, in mitigation of human suffering over time.
Before moving on to the remaining, constructive part of this article’s argument, it is worth
stressing that the previous discussion gives us a new way to resolve the so-called paradox
of constitutionalism. “The people” that emerges from critical engagement with normative
theory and international jurisprudence is neither a nation nor a “territorial people” nor a
name for the population whose composition must remain intact due to the imperatives of
bounded pluralism. Rather, by uncovering the ideal of constituent attachments and their
aggregate improvement, “the people” emerges as the trope which brings about that
improvement—through selective application of the people’s “will”—but that
simultaneously suppresses the recognition of that ideal’s existence. To put it differently, in
the context of struggles over territorial sovereignty, “the people” is the name we give to
our societal and disciplinary anxieties which prevent us from openly debating the pace,
degree, and extent of the recalibration of the aggregates of constituent attachments. The
so-called paradox of constitutionalism, then, is not a genuine puzzle, but rather a symptom
of the suppression of these anxieties.
Thus, the critique of normative theory and international jurisprudence enables us to go

beyond the paradox of constitutional theory. Equally important, however, it has given us
the tools through which constitutional theory may approach the conflict in Ukraine in
principled terms, beyond the twin—moral and juridical—vocabulary of the people’s right.
Instead of relying on these, a constitutional theory of early-conflict constitution-making
will openly aspire to mediate normative ideals and prudential concerns that animate them.
By the same token, such theory will also embrace territorial integrity as a prudential side
constraint, divorced from the moralistic invocations of the right of an allegedly sovereign
people—or a nation—to decide its political destiny. In doing so, it continues to assert the
factual inevitability of external political interference. Within that frame, it seeks to come
closer to the normative ideal implicit in both nationalist and legitimate state theories of
territorial rights. It does so, however, without resorting to the invocation of the rights
vocabulary, and its attendant contradictions, epistemic difficulties, and moral hazards.
It is worth making clear, however, that the constitutionalist framework for early-conflict
constitution making must own up to the contingent way in which it seeks to reconcile the
normative and prudential assumptions that animate it. Unlike the choice theory of
59
secession advanced by Catala and to a certain extent Maclaren in this volume , I do not
propose a less restrained pursuit of aggregate improvement—the results of which may
59
Catala, supra note 6.
60
often coincide with Catala’s vision of “political self-determination.” Rather, a
constitutional theory of early-conflict constitution-making builds on the empirical case
behind Roth’s defense of bounded pluralism. For those who are not convinced either by
Roth’s argument or by the empirical case behind it, the passages that follow will be
similarly unconvincing.
However, the benefits of the approach I propose go beyond a simple alternative to the way
in which territorial conflict is argued in normative theory and international jurisprudence.
They also lie in its hoped-for contribution to the affective register of political struggles over
territory; more specifically, towards deflating the moralistic invocations of collective
political subjectivity, irrespective of whether they are defined in nationalist (Miller and
Meisels) or statist terms (Stilz). By uncovering the inconsistencies, performative
contradictions, and circularities on the way towards the constructive proposal that unfolds
below, my critique in the previous three sections has also sought to demonstrate that the
very vocabulary that ethnic and statist nationalists consider natural is in fact the result of
wider—if unacknowledged—societal and disciplinary anxieties.
More concretely, in contrast to the vocabulary of a nation’s or a state’s territorial right, the
approach to early-conflict constitution-making proposed in this article features three
central components. The first component asserts the existence of a constitutional duty on
61
the part of a central government to negotiate federalization in good faith. By privileging
federalization my argument intersects with the substantive proposals of Andrew Arato’s
62
two-stage constituent process defended in this volume. The second component asserts
the early exercise legitimacy of the ontologically inevitable—if perceptually latent—
external constituent power, intervening to impel all sides in an otherwise “domestic”
conflict to negotiate toward federalization. The third component begins in the most
extreme case: When “saving” the political existence of an internally conflicted sovereign
state becomes impossible. In that case, after the failure of an externally facilitated,
constitutional project of federalization, the imperative should be more of the same:
63
Recursive federalization within to-be independent territorial units.
60
Id. at 283–86.
61
By federalization, I mean an institutional outcome of constitution-making that would result in the creation of
one or more territorial autonomies within a state which would, in turn, be represented at the central level of
decision-making. I hasten to add, however, that this process need not necessarily result in a federation. The exact
content of such a federal-like solution would emerge through negotiations as parties negotiate (and trade-off) the
territorial extent of the autonomy, its jurisdiction, and the powers and composition of the central organs of
government.
62
Andrew Arato, International Role in State-Making in Ukraine: The Promise of Two-Stage Constituent Process, 16
GERMAN L.J. 691 (2015).
63
See Zoran Oklopcic, Provincializing Constitutional Pluralism, 5 TRANSNAT’L LEGAL THEORY 331 (2014) (defending a
similar claim).
I. Constitutional Duty to Negotiate Federalization in a Good Faith
A constitutional duty to negotiate federalization in good faith is a constitutionalist

manifestation of the normative ideal to increase the aggregate satisfaction of individual
constituent attachments. Beyond its partial correspondence with ideals implicit in the
nationalist and statist vocabulary of self-determination, this duty also finds inspiration in
comparative constitutional jurisprudence. A constitutional duty to negotiate federalization
is a less-known relative of its more famous cousin, the constitutional duty to negotiate
secession in good faith, articulated by the Supreme Court of Canada in 1998 in the
Secession Reference. Basing its judgment on the interplay of four unwritten principles that
animate the Canadian constitutional order, the Supreme Court determined that all
participants in the federation are under duty to negotiate secession in good faith when the
64
people of Quebec clearly manifests a will to pursue it. Though the Reference rejected any
outright constitutional implications of the federal government’s refusal to engage in
negotiations in good faith, the Supreme Court suggested that such a move would rightly
65
undermine the legitimacy of the Canadian state in the eyes of the international audience.
Many have hailed the Court’s reasoning as an example of the capacity of modern
constitutional orders to offer flexible and attractive responses to fundamental challenges
66
to its very existence. Given such widespread praise, one could argue that advancing a
weaker version of this duty—a maiore ad minus—would, in principle, be even more
laudable. The adoption of the spirit of the Secession Reference in Ukraine would escape
the conceptual difficulties associated with territorial rights, evade the impossible task of
disentangling competing historical claims, and circumvent the moral hazards that stem
from apodictic understandings of territorial rights in popular discourse. In doing so, the
spirit of the Secession Reference would still respond to important normative ideals implicit
in the idea of territorial rights by leading the constitutional order to work towards the
67
accommodation of radical political difference.
64
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.).
65
Id. at para. 103.
66
See Sujit Choudhry, Does The World Need More Canada?, 5 INT’L J. CONST. L. 606 (2007) (providing a skeptical
view that the world needs “more of Canada”).
67
I mention this because some of the current approaches in comparative constitutionalism would object to such
migration on contextualist grounds, arguing that each polity’s constitutional order is a unique manifestation of its
culture and history. Indeed, the Secession Reference itself suggests as much as it develops the meaning of the four
unwritten principles from an interpretation of the relevant episodes in early Canadian constitutional history and
relevant constitutional jurisprudence. While this objection legitimately demands caution in migrating and
adapting constitutional ideas, it cannot be taken as credible in its strongest form, namely that a constitutional
order is an expression of a particular people’s values and ideals. If my critique of territorial rights discourse has
been persuasive, it would also have undermined the insistence on the legitimacy of a putative territorial people.
By uncovering constituent attachments as a suppressed ideal behind the vocabulary of the people, the migration
While the Secession Reference’s concrete message, by migrating from Canada to Ukraine,
68
is inevitably subject to de-contextualization and adaption, its three core constitutive
components would remain preserved. The first component promotes the idea of a
constitution’s radical responsiveness as a functional equivalent to a dissatisfied nation’s
rights discourse. As mentioned earlier, one reason why the vocabulary of territorial rights
will always appear attractive, irrespective of its difficulties, is because it continues to
provide a straightforward way of legitimizing political and moral claims.
The first lesson of the Secession Reference is that the existence of a territorial right—or
any collective right for that matter—is not necessary to understand the constitutional
order as being imperatively responsive to radical demands for its own territorial
reconfiguration. In the case of Quebec, for example, the Canadian Supreme Court came to
the conclusion—without addressing who the relevant people of Quebec were for the
purpose of secession or the validity of independent Quebec’s territorial jurisdiction—that
the “continued existence and operation of the Canadian constitutional order could not be
indifferent to a clear expression of a clear majority of Quebecers that they no longer wish
69
to remain in Canada.” If a clear majority of “Quebeckers” expresses their desire to
70
secede, the government of Quebec has a right to pursue secession, which creates “an
71
obligation on all parties [in the federation] to come to the negotiating table.” No
assertion of a territorial right is necessary to trigger this process, or logically implied in the
Court’s reasoning.
The second lesson of the Secession Reference concerns a constitution’s tendential

responsiveness. The vocabulary of territorial rights may still be necessary in some
contexts—not only because these rights trigger the politico-legal process that leads to the
formation of a new polity, but also because they carry an ethical force that propels the
process towards the satisfaction of a claim to a particular territory. Therefore, even if this
critique of nationalist theory’s incapacity to determine precise boundaries of an integral
territory is correct, nationalist theory may, arguably, provide a pro tanto determination of
a territory—a determination absent from the constitutional framework envisaged by the
Secession Reference.
of the Secession Reference is actually justified on normative grounds—as a way to respond to this ideal, implicit
among all those who believe in the idea of popular sovereignty.
68
See Gunter Frankenberg, Constitutional Transfer: The IKEA Theory Revisited, 8 INT’L J. CONST. L. 563 (2008)
(providing a critical account of the logic of decontextualization in the migration of constitutional ideas).
69
2 S.C.R. 217, at para. 92.
70
Id.
71
Id.
Under the Secession Reference, however, this problem is alleviated by the duty of all
parties to negotiate the demand to secede in, what most Secession Reference
commentators have dubbed “good faith.” Such good faith negotiations over secession
must imply tendentiality towards the satisfaction of the demand to secede. The demand to
secede by its nature only recognizes a binary outcome—secession or no secession—and
does not consider good faith as a requirement to meet the other side halfway. While such
an understanding of the requirement of good faith is commonplace in other areas of law,
the binary nature of the demand to secede makes it implausible in the context of
constitutional negotiations. This does not mean that the opponents of secession must
accede to secessionists’ demands at all costs; it only means that the opponents of
secession have the right to demand the satisfaction of their legitimate interests and that
they ought to narrow their demands in such a way that does not deliberately frustrate the
72
viability of the secessionist project.
The duty to negotiate federalization, however, preserves the tendentiality of good faith
negotiations, though its ultimate destination is perforce more obscure. Secession radically
affects the extant constitutional order, but rarely continues to affect its functionality after
the fact, unless new territorial boundaries make its operation difficult, or unless the initial
act of secession provokes a chain reaction that leads to an ongoing constitutional crisis in
73
the rump state. A demand for federalization, paradoxically, should lend more negotiating
power to the central state. Federalization, unlike secession, implicates all regions in an
ongoing functional political relationship.
The third core component of the Secession Reference mandates the inclusiveness of
different stakeholders in the negotiating process. While the Canadian Supreme Court
steered clear of the vocabulary of territorial rights, it also stipulated that good faith
74
negotiations should be held among “all parties to Confederation.” The Canadian Supreme
Court did not specify who these parties were, and a restrictive reading of this demand
would extend the invitation to negotiate only to provinces, and not to aboriginal peoples
or linguistic minorities in Quebec. Considering the migration of the core components of the
Secession Reference to Ukraine, there is little reason to interpret the demand of inclusion
in negotiations so narrowly. Non-territorially concentrated native peoples as well as
72
See Zoran Oklopcic, Anxieties of Consent: Theorizing Secession Between Constitutionalism and Self-
Determination, 22 INT’L J. MINORITY & GROUP RTS. 259 (2015) (providing my further defense of this view, against the
claims that “the duty to negotiate” requires secessionists to persuade other participants that the essence of their
demand is legitimate).
73
Elecciones para cambiar la UE, EL PAÍS, May 17, 2014 (stating that in the context of debates over the secession
of Catalonia, for example, some have argued that its secession would provoke a “domino effect” in the rest of the
“España invertebrada,” “spineless Spain”—a term invented by Ortega y Gasset—whose political unity has always
been a precarious achievement).
74
2 S.C.R. 217, at para. 88.
territorially concentrated and politically self-organized minorities-within-minorities ought

to have a seat at the negotiating table along with the constituent units of the federation.
Understood this way, the core components of the Secession Reference permit the,
dignified inclusion of all stakeholders in the territorial conflict in Ukraine—such as Crimean
Tatars or pro-Ukrainian minorities in the eastern part of the country—without requiring
the application of the vocabulary of territorial rights.
II. Early Exercise of Latent, External Constituent Power
The adapted message of the Secession Reference does not require the central government
to negotiate the demand to secede. This approach to early-conflict constitution-making
accepts the strong empirical correlation between increased incidents of violent state death
and the absence of the norm against intervention. This constitutional theory—contrary to
approaches in international jurisprudence that prohibit intervention in the domestic affairs
of an independent state—would embrace the exercise of external constituent power at an
early stage in a radical constitutional conflict.
In doing so, such constitutional theory re-envisions an important part of its own
foundational imaginary, as well: it divorces the idea of “the people” from the idea of
“constituent power” and imaginatively pluralizes the number of constituent power’s
bearers. Instead of seeing the people of Ukraine bootstrapping itself into constitutional
existence through the adoption of a new constitution, this constitutional theory envisions
the foundation of a post-conflict constitutional order as the work of the plurality of
constitutional powers across the divide between the inside and the outside. Such a view of
political foundations is nearly self-evident in other disciplines. For example, Jens Bartelson
argues that “all communities are formed through processes of co-constitution, which
involve a constant exchange of symbols and values resulting from intercourse between
75
communities of different size and scope.” In constitutional theory, however, this
perspective has until recently remained obfuscated, and devoid of more concrete
implications.
If negotiating federalization is desirable, and if external constituent interference is

inescapable, then the constitutional theory advanced here requires honoring the different
forms of external interference in the domestic affairs of countries that experience
territorial conflict—assuming that the goal of interference is to pressure all domestic
actors to negotiate towards federalization. More concretely, this interference may include
different forms of diplomatic pressure, such as sanctions against actors who oppose
76
negotiating federalization or financial donations for political actors that promote it.
75
See, e.g., JENS BARTELSON, VISIONS OF WORLD COMMUNITY 11 (2009).
76
See Lori Fisler Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic
Affairs, 83 AM. J. INT’L L. 1 (1989) (providing a comprehensive survey of legitimate forms of interference from the
vantage point of international law).
Equally, this interference may include conditioning the recognition of a new government
on its commitment to negotiate towards the federalization of the country or withdrawing
recognition from such government if it reneges on that commitment.
Dignifying the exercise of external constituent power poses an important lateral issue: One
of the norms of territorial integrity is to fend off a powerful state’s hegemony, but
federalization may favor one powerful state. A loose Ukrainian federation, where
constituent units participate in foreign policy, for example, would inadvertently be more
sympathetic towards Russian geopolitical interests. And this, according to Ivan Krastev, has
been the true aim of Putin’s policy:
[T]he Kremlin’s vision for Ukraine’s future is that it

becomes a “Greater Bosnia”—a state that is radically
federalised with its constituent parts allowed to follow
their natural cultural, economic and geopolitical
preferences. It means that in theory, the territorial
integrity of the country will be preserved but the
Eastern Ukraine’s status will be similar to that of the
Republika Srpska in Bosnia and it will have closer ties
77
with Russia than the rest of the Ukraine.
This prospect largely fuels the anti-federalist sentiment engrained among the Ukrainian
elite, as well as nationalists on the ground. The affective aversion towards federalism,
while understandable, is normatively questionable given the incapacity of the leading
78
moral theories of territorial rights to justify Ukrainian territorial integrity. Equally,
worries about the geopolitical orientation of the outcome of externally imposed
constitution-making are less relevant due to the inescapability of some geopolitical
orientation: Whatever its constitution, an independent Ukraine will end up favoring one
set of external interests over others.
77
Ivan Krastev, What Does Russia Want and Why?, PROSPECT (Mar. 6, 2014),
http://www.prospectmagazine.co.uk/politics/what-does-russia-want-and-why.
78
While the recent antipathy towards federalism in Ukraine is exacerbated by Russia’s insistence on federalism as
the appropriate constitutional framework for the resolution of the conflict, its roots are deeper. The Ukrainian
elite’s insistence on unitary statehood can in good part be explained by its assimilation of what it has considered
to be “European” political and constitutional imaginary. The “return to Europe,” as a geopolitical orientation, has
entailed as its complement the adoption of what is seen as the “European” (in effect, French) constitutional form
of a “unitary state,” and the repudiation of its own Soviet, federalist, constitutional heritage. Kataryna Volczuk,
Catching Up with “Europe”? Constitutional Debates on the Territorial-Administrative Model in Independent
Ukraine, 12 REGIONAL & FED. STUD. 65 (2002). Equally, federalism was rejected by invoking the alleged purpose of
American federalism whose purpose was to centralize, not devolve political power. Ukraine was already a unified
state, so, consequently, federalism was unnecessary. Id. at 75.
But the calculus behind the norm against conquest justifying its contemporary incarnation
as “territorial integrity” should be interpreted as prohibiting not only outright annexation,
but all similar changes in the constitutional structure of the targeted countries—effectively
turning them into political vassals. The problem is not that a federal Ukraine would simply
79
wallow in “geopolitical ambiguity,” as Krastev suggested, but rather that its—factually or
allegedly—dysfunctional constitutional order would be used to justify perpetual political
tutelage over it, as exemplified by the two-decades-long protectorate over Bosnia and
80
Herzegovina.
Irrespective of the fact that the involvement of external constituent powers is ontically
inevitable, their constitutional interference should be pursued in good faith, and not driven
by their self-serving geopolitical motivations. One imperfect way to respond to this worry
is to recognize the political legitimacy of the tu quoque objection otherwise considered
inadmissible in moral reasoning and in legal argumentation. A powerful state—in its
exercise of external constituent power—could not legitimately press for a constitutional
power-sharing arrangement that it is not willing to implement in its own constitutional
order. Insisting on moral consistency on the part of external constituent powers would be
less important for moral consistency’s own sake, but would rather serve as indirect
evidence of its good faith constitutional engagement.
III. Recursive Territorial Pluralism
The third component of a constitutional theory approach to early-conflict constitution-

making reveals itself only in a liminal case—not currently on the horizon in Ukraine—when
the reconstitution of a central state becomes increasingly implausible. The vocabulary of
territorial rights—being a-contextual and temporally insensitive—does not offer
prescriptions for this specific case. Equally, Roth’s international jurisprudence of bounded
pluralism remains silent on the issue as well, arguing that a constitutional outcome will be
determined through the interplay of the principles of effectivity and non-intervention.
Instead of the application of self-determination, the international legal order continues to
81
offer us “ad hoc solutions” to in determining what constitutes an independent state.
Whether or not such an interpretation of international law is credible, state practice shows
remarkable consistency in privileging the independence of first-order territorial units in
79
Krastev, supra note 77.
80
See, e.g., Gerald Knaus & Felix Martin, Travails of the European Raj, 14 J. DEMOCRACY 60 (2003) (giving a critique
of the tutelage of the EU over Bosnia and Herzegovina).
81
multilayered polities at the expense of the self-proclaimed territorial units that do not
82
enjoy robust political autonomy under the previous constitutional regime.
Following the collapse of communism, this principle—uti possidetis juris—was first applied
in the former Yugoslavia, and the merits of its application in that context remain hotly
83
debated. But the implicit mechanics of territorial fragmentation have gone unnoticed—
the pattern of territorial reconfiguration over the entire Yugoslav political space over time.
Over time—beginning in socialist Yugoslavia in 1991 and ending with Kosovo in 2008—the
contours of recursive territorial pluralization have been brought to light, manifesting itself
as recursive federalization—in Bosnia and Herzegovina—or recursive decentralization—in
Kosovo—wherever deep national plurality had not been extinguished by the state’s
military might, such as in Croatia in 1995. Without its military victory and the ethnic
cleansing of Krajina Serbs that followed it, Croatia would most likely also have been
reconstituted as a federacy, featuring robust Serb territorial autonomy, and within it, local-
84
level territorial autonomies for the Croatian population. Instead of being a simple case of
botched external intervention, or the (mis)application of uti possidetis, the experience of
territorial re-composition in the former Yugoslavia from 1991–2008 paints a picture of
territorial fragmentation on a “time release” structured by the demand to territorially
compensate politically significant national communities for their new minority status.
Both constitutional and international lawyers should consider this picture as they
contemplate constitutional solutions for other deeply divided places. The first
constitutional settlement for Bosnia in March 1992—Cutileiro’s Plan—envisaged a similar
territorial recursion, linking the independence of Bosnia to the creation of territorial
cantons with the Bosnian, Serb, and Croat majority. However, it was effectively torpedoed
by the U.S. administration, whose eventual resistance to cantonization in 1992 encouraged
the Bosnian-Muslim leadership to withdraw their support for the constitutional
85
settlement. A constitutional settlement was finally reached three years later at Dayton,
giving more territory and autonomy to the Bosnian Serbs and Croats than originally
envisaged in Cutileiro’s Plan. Could one of the tragedies of the former Yugoslavia lie in the
fact that the most powerful states embraced this recursive territorial pluralism
haphazardly as a regrettable matter of fact, and not of principle?
82
Some have defended this practice as a matter of uti possidetis rule. Others, such as Jure Vidmar, have defended
it in terms of the “historical pedigree” of such units. See JURE VIDMAR, DEMOCRATIC STATEHOOD IN INTERNATIONAL LAW:
THE EMERGENCE OF NEW STATES IN POST-COLD WAR PRACTICE (2013).
83
See, e.g., PETER RADAN, THE BREAK-UP OF YUGOSLAVIA AND INTERNATIONAL LAW (2002); see also SUZANNE LALONDE,
DETERMINING BOUNDARIES IN A CONFLICTED WORLD: THE ROLE OF UTI POSSIDETIS (2002).
84
See Z-4 Plan for Croatia; See DRAFT AGREEMENT ON THE KRAJINA, SLAVONIA, SOUTHERN BARANJA AND WESTERN SIRMIUM
(Z-4 PLAN) (Jan. 18, 1995), http://www.liv.ac.uk/library/sca/owen/boda/sp10a.pdf.
85
James Goodby, When War Won Out: Bosnian Peace Plans Before Dayton, 1 INT’L NEGOTIATION 501, 509 (1996);
see also Saadia Touval, Coercive Mediation on the Road to Dayton, 1 INT’L NEGOTIATION 547 (1996).
There is no way of knowing whether the military conflict would have been prevented, or its
human toll mitigated, if powerful states explicitly committed to the principle of recursive
territorial pluralism before the constitutional conflict became an armed struggle.
Irrespectively, however, the recursive territorial pluralization of newly independent states
should not be seen as an accidental ironic return of the same—where Bosnia leaves the
Yugoslav federation only to become yet another federation—but rather as a desirable
institutional outcome, supported by the same normative ideal that lies behind the
invocation of both territorial people or ethnic nation’s territorial rights—the same ideal
that seems to be implicitly operative even in the jurisprudential accounts that negate it,
86
such as Roth’s. The normative attractiveness of this solution—which over time increases
the aggregate satisfaction of individual constituent attachments—has remained
obfuscated not only by international jurisprudence’s sharp distinctions between
internal/external self-determination, but also by the skewed moral vocabulary of a nation’s
or people’s territorial rights.
F. Federalizing Ukraine and Constitutional Theory: An Alternative and an Irritant
The chief practical implication of this article is to join a growing—if disenchanted—chorus

of voices, both within and outside academia, that propose the federalization of Ukraine as
a morally justified and politically commonsensical solution to its increasingly violent
87
conflict. Nonetheless, the theoretical proposals advanced here differ not only from the
scholarship in normative and international jurisprudence, but also from the ways in which
88
consociational democracy for post-conflict societies is justified in political science.
Needless to say, the resonance of these institutional proposals will be determined by

(geo)politics, not theoretical argumentation. Even so, constitutionalist engagement with
86
See supra Part D.
87
See, e.g., HERMAN VAN ROMPUY, CINQ ANS À LA PRÉSIDENCE DU CONSEIL EUROPÉEN: DISCOURS À SCIENCES PO,
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/fr/ec/145952.pdf (“Il faudra une solution
globale. Il faudra trouver une façon pour l’Ukraine d’être un pays décentralisé (ou fédéralisé) et inclusif.”); see
also Germany's Vice-Chancellor Backs “Federalization” in Ukraine, REUTERS (Aug. 23, 2014)
http://www.reuters.com/article/2014/08/23/us-ukraine-crisis-germany-gabriel-idUSKBN0GN08X20140823.
88
Improvement in the aggregate allegiances can also be discerned from some influential approaches to
consociational democracy, however. The defense of “liberal consociationalism” in the Iraqi context, offered by
John McGarry and Brendan O’Leary, insists on “ensur[ing] that the rights of individuals as well as groups are
protected.” John McGarry & Brendan O’Leary, Iraq’s Constitution of 2005: Liberal Consociation as Political
Prescription, 5 INT’L J. CONST. L. 670, 675–76 (2007). But the way in which liberal constitutionalism manifests itself
institutionally, on the ground, is through the constitutionalized possibility of the territorial reconfiguration of
Iraq’s governorates, through referenda called triggered by popular initiative. The net result of such process would
be the manifestation of the same ideal—improvement in the aggregate satisfaction of individual constituent
attachments over the reconstituted territory—already offered in this article as a more compelling answer to the
annexation objection.
the crisis in Ukraine has also been productive for conceptual and disciplinary purposes,
enabling us to resolve the paradox of constitutionalism in a manner different from those
proposed implicitly by normative and international jurisprudence. As a matter of political
realism, the paradox does not make sense. The “people” is formed at the interstice of the
provisional and tentative “inside” and “outside,” and the external constituent powers
inadvertently partake in the constitution of an allegedly “sovereign” people. Perhaps
surprisingly, however, the reverse side of this constitutional realism is normative
prescription. Through an engagement with the annexation objection, it is clear that the
idea of the people conceals a more basic ideal—the respect for individual constituent
attachments—that provides a criterion to assist in the reconstitution of territorial
boundaries of sovereign polities.
Nonetheless, the three concrete proposals of constitutional theory advanced in this article
do not quietistically accept the inescapable role of external constituent powers, nor do
they demand the redrawing of the political boundaries of sovereign states to increase the
aggregate of satisfied constituent attachments over a reconstituted territory. The reason
for stopping short of this conclusion is simply prudential; it lies in constitutional theory’s
conscious acceptance of the empirical and historical argument in favor of territorial
89
integrity that provides the strongest—if implicit—support to Roth’s “bounded pluralism.”
In grounding its understanding of the people through inter-disciplinary confrontation, this

article has also presented constitutional theory with an opportunity to come to a more
profound understanding of its own purpose. Beyond offering parameters for early-conflict
constitution-making, constitutional theory hazarded in this article establishes itself as an
alternative to the ways in which normative theory imagines political conflict over territory.
It offers simpler institutional prescriptions that still satisfy important normative ideals
hidden in the vocabulary of moral rights to territory. In doing so, constitutional theory
invites a broader debate about the most effective kind of theoretical discourse necessary
to address political conflict over territory.
On the other hand, this constitutional theory challenges increasingly frequent doctrinal
and critical contributions to international jurisprudence claiming that there is no inherent
normative content in self-determination that would offer useful guidance in territorial
conflict. In the context of the dissolution of Yugoslavia, for example, Martti Koskenniemi
complained that self-determination “becomes useless when it seems most needed: in a
90
dispute about the boundaries of a particular ‘self’ against another.” For Roth, “affective
communities have no natural territorial coherence, and imposition of such coherence
89
90
Martti Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Practice, 43 INT’L & COMP.
L.Q. 241, 264 (1994).
91
could be accomplished only by grotesque means.” But the first claim is correct only if a
theoretical inquiry is ignored and considerations of what ideals lie behind the people’s
territorial rights and self-determination are sacrificed. Conversely, the correctness of
Roth’s second claim is conditional on acceptance of the hyperboles it entails.
But even if Roth’s claim that affective communities have no natural territorial coherence is
accepted, we can, and in fact have, historically come closer to satisfying their aspirations.
In fact, the entire legal and political history of self-determination’s application is a story of
forward movement towards improving the degree of satisfaction of individual constituent
attachments over reconstituted territory. Whether normative or prudential, both ideals
serve as a metric that unites the acts of ethno-national self-determination in the interwar
period, the applications of uti possidetis during decolonization, and our ongoing revulsion
towards annexations—some annexations in particular—with our contemporary discomfort
with tolerating various neo-protectorates in perpetuity. It also provides an answer to why a
federal Ukraine is preferable to a unitary one.
Without aspiring to be yet another call for the institutional reform of international law,
constitutional theory offered in this article should also be seen as a perceptual irritant to
international jurisprudence—inviting it to consider whether it is worth excluding this
insight, at least as a subplot, from its dominant narrative of self-determination and
territorial integrity.
91
International Role in State-Making in Ukraine: The Promise of a

Two-Stage Constituent Process
By Andrew Arato*
A. Introduction
The conflict in the Ukraine—barely placated by a fragile truce that temporarily froze its
territorial fault lines—remains one of the gravest threats to both regional and international
peace since the end of the Cold War. The present de facto territorial arrangements in
Ukraine remain highly unstable—as well as entirely unacceptable—to at least one of the
parties to the conflict. With the fate of the second Minsk Agreement in question, neither
the parties involved in the conflict nor the powers that support them have been able to
propose mutually-acceptable, comprehensive solutions that would significantly diminish
the danger of a renewed violent confrontation. In such a situation, the wider international
community could play a helpful role in achieving a lasting political settlement.
Given that the conflict in Ukraine concerns the territorial structure of the State and its
internal constitutional arrangements, external actors cannot restrict themselves to a mere
1
pouvoir irritant—as defined recently in an important article by Nico Krisch —but should
actively participate in achieving a substantive constitutional settlement. In defending this
stance, this article will tackle two fundamental questions: (1) How interventionist should
the role of international actors be, and in which constituent processes would it be
legitimate for them to intervene? (2) Should their aim be to restrict the scope of action of
*
Dorothy Hart Hirshon Professor of Political and Social Theory, The New School. Email: Arato@newschool.edu. I
want to thank Zoran Oklopcic for encouraging me to write this article, as well as for his helpful comments on the
penultimate draft. I also want to thank Julian Arato for correcting at least some of my mistakes regarding
international law. I alone remain responsible for the final product.
1
Nico Krisch, Pouvoir Constituant and Pouvoir Irritant in the Post-National Order, SOC. SCI. RES. NETWORK,
http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2431266_code812324.pdf?abstractid=2430128&mirid=1. For
Krisch, in an post-national world, constituent power “operates merely as an ‘irritant’ of an order which, in its
normal operation, leaves little room for popular sovereignty, or even political agency.” Id. at 2. However, the
constituent power that acts “as an irritant may still be an important role. It may help to disturb the
institutionalization of the world along merely technocratic, power-driven lines, and it may also help to keep the
idea of agency present in the postnational space.” Id. at 19. In going beyond understanding external powers as
(co-)constituent, this article goes beyond their “irritating” role, this article seeks to capture one important way in
which external actors can, and generally should, influence domestic constitutional developments. But it does not
capture either the variety of factual forms, nor the possible justification of forms of intervention that legitimately
rely on power, as well as influence.
domestic actors in a constituent process or to empower these actors to design their own
solutions to their own conflicts?
This paper will begin addressing these questions by first drawing a series of distinctions
that illuminate the choices involved in international intervention, setting the stage for its
prudential and normative defense. Such intervention should go well beyond ineffectual
pronouncements of international public opinion, but should nonetheless be limited by
political and moral imperatives of contemporary international order. In recognizing that
the international community cannot—and ought not—absolve itself from the responsibility
that accompanies state- and constitution-making in the context of deeply divided societies,
this article will also insist on the enduring ideal of constitutional autochthony. The second
part of the paper will discuss the promise of an alternative approach for a possible
international role in the context of the conflict in Ukraine.
B. Framing the Debate About the International Role in Domestic Constitution Making
2
The idea of an international pouvoir constituant —as proposed by Zaid al-Ali with Philip
3 4
Dann and, more recently, in several forceful pieces by Zoran Oklopcic —is increasingly
receiving attention in debates about externally influenced constituent processes. Beyond
recent debates in theory, the practice of international pouvoir constituant—if not under
that term—has its historical origins in the period of the dissolution of empires after the
First World War. It includes post-Second World War occupations and constitutional
transformations in Japan and Germany, as well as the UN involvement in ending the
Palestine mandate in 1947. International constituent power continued to be exercised
throughout the period of decolonization, including the recent cases of the UN-sponsored
international involvement in post-conflict constitution making in Namibia, Cambodia, East
Timor, Bosnia, Afghanistan, and even Iraq.
As the ongoing conflicts in Israel, Palestine, and, most recently, Ukraine amply
demonstrate, the contemporary political relevance of an international role in
reconstituting troubled polities is by no means exhausted, making its theoretical
articulation an urgent task for constitutional theory and its adjacent disciplines. The rising
threat of authoritarianism in a number of countries, such as Hungary or Turkey,
2
In this article, I consider the external as international, though legal and legitimate only when there is
international law authorization, or at least principle, supporting it, and when the intervening actor has been
suitably, generally pluralistically constituted by a legitimate international authority. On this, see, infra.
3
Philip Dann & Zaid Al-Ali, The Internationalized Pouvoir Constituant—Constitution-Making Under External
Influence In Iraq, Sudan and East Timor, in 10 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 423 (2006).
4
See generally Zoran Oklopcic, The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond
Territorial Rights and Constitutional Paradoxes, 16 GERMAN L.J. 658 (2015). Oklopcic applies the argument to the
case of the Ukraine in this issue of GLJ.
2015 International Role in State-Making in Ukraine 693
demonstrates that the international role cannot—and should not—be simply reduced to
the idea of external constitutional involvement as pouvoir irritant, a mere power to
verbally influence domestic political processes of countries that undergo profound political
5
re-constitution.
In order to approach the question of a legitimate international role in the making of States
and constitutions productively, the vocabulary of international constituent power deserves
to be complicated. A number of interpreters, for example, stress the difference between
6
various levels of intervention, ranging from “hard” to “soft,” or what otherwise might be
called “power” and “influence.” Yet, the idea of international constituent power itself
papers over five important distinctions and one important question, each of which is key to
finding a more principled solution for the legitimate international role in the making of
7
States and constitutions.
The distinctions are: (1) Between power and authority; (2) between legality and legitimacy;
(3) between state-making and constitution-making; (4) between original state-making
(founding) and the re-foundation of existing polities; and (5) between procedure and the
substance of international involvement in domestic constituent processes. The sixth point
concerns the paramount question: Who should legitimately intervene, and what should be
the composition of such an international body? Before turning to the problem of the
Ukraine, let me elaborate more closely on these six points.
I. Power and Authority
The distinction between the constituent as power and the constituent as authority is
important, despite the systematic ambivalence concerning this issue in most classical texts
5
For an argument in favor of a more engaged role of the international actors in preventing democratic backsliding
in Hungary, see Erin Jenne & Cass Mudde, Can Outsiders Help?, 23 J. DEMOCRACY 147, 153 (2012). For claims that
the weakening of the EU conditionality weakened Turkish constitutional reform process, see Firat Cengiz, The
Future of Democratic Reform in Turkey: Constitutional Moment or Constitutional Process? 49 GOV’T & OPPOSITION
682, 697–98 (2014).
6
See Dann & Al-Ali supra note 3, whose analysis features a case between “domestic” and “international”
constituent power among their case-studies.
7
Though I go beyond oversimplified invocations of constituent power in the sphere of international involvement
in constitution-making, I also disagree with the attempts to abandon this concept for the sake of concerns of
liberal legal theory. For that approach, see generally David Dyzenhaus, Constitutionalism in an Old Key: Legality
and the Constituent Power, GLOBAL CONSTITUTIONALISM 1, 2 (2012). His argument ultimately rests on the belief that
only the constitutional result matters, not the process of making. I disagree with this assessment on both
normative and empirical grounds. For another critique of Dyzenhaus’ approach, see also Zoran Oklopcic, Three
Arenas of Struggle: A Contextual Approach to the Constituent Power of “The People,” in 2 GLOBAL
CONSTITUTIONALISM 200 (2014). See also ANDREW ARATO, POST SOVEREIGN CONSTITUTION MAKING (forthcoming); ANDREW
ARATO, ADVENTURES IN THE CONSTITUENT POWER (forthcoming).
8
on pouvoir constituant. On the one hand, the concept of power belongs to the realm of
facts. In that regard, Hannah Arendt’s remarks in On Revolution have been partially right;
power is ultimately generated from the interaction among a relatively large number of
9
people. While Arendt developed her vision of “constituent” power in the context of a
worthy political enterprise of “the constitution of liberty,” political power need not arise
10
from a legally or ethically justifiable form of interaction. Irrespective of political
aspirations, theorizing external involvement in—the making of States and constitutions—
or any form of constitution-making, for that matter—should never lose sight of the
Weberian understanding of power, which exists only when there is an ability to carry out
11
projects despite resistance.
On the other hand, authority is a normative concept, irrespective of whether it is

conceived in a legal or an ethical sense. In fact, the entire discourse of the pouvoir
constituant has always implied something more, namely that the agent establishing a
constitution must also be normatively justified in doing so. The rarely used concept of
12
constituent authority expresses this requirement.
While the power and the authority to make a constitution can refer to a single, unified
actor—as in the conception famously advanced by Sieyès, and later on by Carl Schmitt—
there can also be possessed power or claimed authority by a plurality of actors acting in
concert, simultaneously, successively, or antagonistically. Therefore, the idea of an
international pouvoir constituant can refer to external actors establishing a constitution, or
in combination with domestic actors.
The starting point for comparative analysis should be the fact that a host of varied
international actors can and do intervene in internal constitution making. Not only the
Japanese case in 1946-7, but the creation shortly thereafter of regimes and constitutions
8
The best examples of this ambiguity are in CARL SCHMITT, VERFASSUNGSLEHRE (1928). On this problem in Schmitt’s
work, see the first chapter of my forthcoming POST-SOVEREIGN CONSTITUENT POWER. ANDREW ARATO, POST-SOVEREIGN
CONSTITUENT POWER (forthcoming). In Sieyès, the problem never came up, but undoubtedly he thought of the
people or the nation as an entity that had the factual ability as well as the normative authority to enact and
establish a constitution. Since such an agency has never been found, it is unsurprising that the two dimensions
came to be unstuck. Schmitt’s ambivalence is based on the derivation of the concept from Sieyès, and his implicit
realization that the claim to speak on behalf of the people must be independently justified.
9
HANNAH ARENDT, ON VIOLENCE 44 (1969).
10
HANNAH ARENDT, ON REVOLUTION 141 (1963).
11
See MAX WEBER, ECONOMY AND SOCIETY 16 (1978); Jürgen Habermas, Hannah Arendt’s Communications Concept of
Power, 44 SOC. RES. 3 (1977).
12
See generally 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 11 (1998). Here, Ackerman juxtaposes
constituent authority with constituent power, whereas I would like to speak of power and authority. See also
Richard Kay, Constituent Authority, 59 AM. J. COMP. L. 715, 743–55 (2011).
for six post World War II people’s democracies in the occupied countries of Central and
East Europe proves this beyond doubt. The same cases however raise the question of
justification or authority. A mere “pouvoir irritant” exercised in the international public
sphere may not have any problems of justification, but could massive external
interventions by colonial, mandatory, occupying powers, or even powerful organs of the
international community, be possibly be justified? The keeping secret of the Japanese
process indicates that at least the US drafters in Tokyo had serious doubts on this score,
13
fueled by the Hague Convention of 1907.
In the modern-day era, the historically variegated constellations of power and authority in
externally-imposed or facilitated-processes of state-making and constitution-making have
increasingly been structured by the overarching ideal of constitutional autochthony. In
international law, this ideal has been prominent at least since the influential contributions
of Emer de Vattel, who contends that constitution-making must be seen as the highest
14
mark of sovereign statehood. In constitutional law, the principle of autochthony has been
dominant at least since Sieyès’ influential account of constituent power, which implied that
the power to constitute, or reconstitute, a polity ought to be exercised by the domestic
political community, or, in Sieyès’ terms, “the nation.”
Beyond the works of theorists, the echoes of the ideal of constitutional autochthony have
been visible in influential international legal documents, even before the ultimate global
victory of the principles of self-determination and popular sovereignty. The Hague
Convention concerning belligerent occupation stipulated, for example, that after
the authority of the legitimate power [has] in fact

passed into the hands of the occupant, the latter shall
take all the measures in his power to restore, and
ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in
15
force in the country.
13
See generally, KOSEKI SHOICHI, THE BIRTH OF JAPAN’S POST WAR CONSTITUTION (1997).
14
Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature Applied to the Conduct and Affairs of
Nations and Sovereigns, in THREE EARLY ESSAYS ON THE ORIGIN AND NATURE OF NATURAL LAW AND ON LUXURY ch. 1, sec. 1
(2008).
15
Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning
the Laws and Customs of War on Land, Oct. 18, 1907, art. 43,
https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=3741EAB8E36E9274C125
63CD00516894. This stance was further reaffirmed by the more detailed provisions of the Fourth Geneva
convention in 1949. See Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12,
1949, art. 47,
http://webcache.googleusercontent.com/search?q=cache:lLi_x7Z4Rm0J:https://www.icrc.org/applic/ihl/ihl.nsf/x
sp/.ibmmodres/domino/OpenAttachment/applic/ihl/ihl.nsf/AE2D398352C5B028C12563CD002D6B5C/FULLTEXT/
ATTXSYRB.pdf+&cd=1&hl=en&ct=clnk&gl=us&client=safari (“Protected persons who are in occupied territory shall
After the First World War, the victorious powers in Versailles imposed minority treaties
exclusively on the defeated and newly formed states. This imposition was criticized, even
16
at that time as a blatant case of victor’s justice, devoid of legality and legitimacy. The idea
of authocthony, already present in the diffuse aversion towards externally imposed
constitutional settlements after the First World War, has, after the Second World War,
been widely embraced within international society, even in contexts of thorough military
defeat, where the victors enjoyed absolute constitutional dominion over the vanquished,
such as in post-War Japan. The worries of the US constitutional drafters in Tokyo in 1946–
1947 about the legal expanse of their role in light of the limiting norms of the Hague
17
Convention, can thus be seen as manifestations of the paramount role of constitutional
autochthony not only in uncontroversial cases of domestic constitution-making in
politically stable societies, but also in those liminal cases where the international role in
18
state-making and constitution-making is either unavoidable or even desirable. Still, in
having divorced power and authority, and submitting them to the regulative ideal of
constitutional autochthony, we confront the question of how to justify concrete attempts
to negotiate the fact of external constituent involvement with the putative authority of an
autochthonous constitutional enactment.
II. Legality and Legitimacy
In tackling this question, we should remember that authority’s justification has more than
one possible source. Authority can be based on legality, legitimacy, or preferably a
combination of the two. The traditional conception of constituent power assumed that
given the legal rupture that occurred, legal justification or authorization of a new
constitutional order must likewise be absent. This view, however, is problematic, both
factually and conceptually.
On the one hand, the traditional understanding of constituent power neglects the fact that
there has been a number of radical constitutional changes in history—including those
featuring external constituent involvement—that have existed in the ambient of legal
continuity and were thus, partially, legally authorized. From Canada in the 1860s, to the
not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any
change introduced, as the result of the occupation of a territory, into the institutions or government of the said
territory.”).
16
See generally HANNAH ARENDT, ORIGINS OF TOTALITARIANISM (1951).
17
See, supra note 13.
18
Thus it is strongly claimed in many situations where an external power did play a significant role, e.g. India. See
KENNETH C. WHEARE, THE CONSTITUTIONAL STRUCTURE OF THE COMMONWEALTH ch. 4 (1960). In India this made sense,
since the constituent assembly, though elected under British rule, could no longer be influenced and dissolved by
the old colonial power. Id.
British India Act of 1935 and beyond, the United Kingdom either produced or played a key
role in the constitution-making of its colonies on the eve of their independence. A similar
19
role was also played by the United States with respect to the Philippines in the 1930s.
After the Second World War, at Lancaster House in London, several constitutions were
produced or negotiated for newly independent states such as Kenya, Malaya, Nigeria,
20
Tanzania, Uganda, Zambia, and Zimbabwe. Under international law as it stood,
lawmaking in the peripheries was a domestic affair of the colonial state, which implied that
until independence was granted through the imperial power’s legislation, the dominion, or
colony, was neither a new sovereign state—the working fiction upheld in Canada until
1982—nor was its constituent power “patriated.”
A bit more complicated was the problem of the League of Nations’ Mandates, formally
existing outside of the purview of imperial sovereignty. In those cases, the League of
Nations’ authority enabled mandatory powers to make “interim” constitutional
21
arrangements in the relevant territory, a role exercised in part by the United Nations
22
after the end of the Second World War. In the context of the formation of Israel and
Palestine immediately after the war, one could argue that the UN established itself as a
decisive external actor in the process of state-making and constitution-making. The failed
outline of the constitutional settlement—proposed by General Assembly Resolution 181—
contained the provisions that concerned non-discrimination, the management of
Jerusalem and holy sites, provisional governments in both states, the constitution of
constituent assemblies, citizenship and voting rights, economic union of the three entities,
religious and minority rights, rights of education for minorities, preservation of personal
23
status, and family law for minorities. The overarching purpose of both regimes, however,
was constitutional autochthony: Empowerment of relevant populations to be the “owners”
of their constituent processes after independence.
The end of colonialism strongly re-inforced an enduring political aspiration towards

constitutional autochthony even though it changed the modalities within which the
19
See ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW 280–91 (2004).
20
See generally, John Darwin, British Decolonization Since 1945: A Pattern or a Puzzle? 12 J. IMPERIAL &
COMMONWEALTH HISTORY (1984).
21
The text of the Palestine Mandate speaks of full powers of legislation, Art 1., in THE ARAB-ISRAELI READER 31
(Walter Laqueur & Barry Rubin eds., 2008). Given the supposed purpose of the Mandate, the implication had to
be only for the period of the mandate itself, that was understood as preparation for full self-government. For an
example of such constitution making by the Mandatory Power, see The White Paper of 1939, in THE ARAB-ISRALEI
READER 45 (Walter Laqueur & Barry Rubin eds., 2008).
22
For the role of UN in resolving early conflicts over self-determination in the 1950s, see generally HAROLD S.
JOHNSON, SELF-DETERMINATION WITHIN THE COMMUNITY OF NATIONS (1967).
23
Id.
international role in state-making and constitution-making manifested itself. The 1982

24
constitutional principles for the former mandate Namibia , generally considered to have
been authorized by the UN Security Council Resolution 435, also combined the emphasis
25
on an autochthonous process with limitations designed by the United Nations.
In questioning the traditional accounts of constituent power that have continued to rely on
a simplistic relationship between power and authority, this brief historical sketch
demonstrates that external constitutional roles frequently existed within a larger structure
of legal authority. This claim can be put in even stronger terms, not only a matter of
historical contingency but also as a matter of conceptual and normative necessity. As Hans
Kelsen argued, even radical constitutional ruptures must presuppose a larger international
legal framework, which structures what counts as “the people,” and the exercise of its
26
constituent power. In other words, by postulating an already existing people, constituent
power recognizes the validity of a larger normative structure. That structure can be
27
understood modestly, following Kelsen, or can be embraced in its richer normative
texture.
If we followed this later route, we will notice that this normative texture has been itself
changing. In the early twentieth century, the Hague Convention seriously limited external
intervention in domestic constitution-making, even though the phrase “unless absolutely
prevented” left a minute escape hatch for an occupying power. In contrast, contemporary
resolutions of the UN Security Council, read in conjunction with the relevant provisions of
the UN Charter itself, have broadened the field for the legality of such external
intervention. Article 103 of the Charter states clearly that “[i]n the event of a conflict
between the obligations of the Members of the United Nations under the present Charter
and their obligations under any other international agreement, their obligations under the
24
There the mandate was ended by successive UN decisions, not recognized by the mandatory, namely South
Africa. See, supra note 20 .
25
See Marinus Wiechers, Namibia’s Long Walk to Freedom, in FRAMING THE STATE: CASE STUDIES IN CONSTITUTION
MAKING (Laurel E. Miller & Louis Aucoin eds., 2010). See also S.C. Res. 435, U.N. Doc. S/RES/435 (establishing
UNTAG) (Namibia). For other examples see also S.C. Res. 745, U.N. Doc. S/RES/745 (establishing UNTAC)
(Cambodia); S.C. Res. 1272, U.N. Doc. S/RES/1272 (establishing UNTAET) (East Timor); S.C. Res. 1378, U.N Doc.
S/RES/1378, S.C. Res. 1483, U.N. Doc. S/RES/1483 (the latter establishing UNAMA), S.C. Res. 1483, U.N. Doc.
S/RES/1483 (Afghanistan); S.C. Res. 1500, U.N. Doc. S/RES/1500 (the latter establishing UNAMI); S.C. Res. 1511,
U.N. Doc. S/RES/1511, S.C. Res. 1546, U.N. Doc. S/RES/1546 (Iraq). The various UN organizations under these
monotonous acronyms played different roles, ranging from the active in East Timor (with respect to establishing
procedures) to the rather passive in Iraq.
26
See HANS KELSEN, THE LAW OF THE UNITED NATIONS: A CRITICAL ANALYSIS OF ITS FUNDAMENTAL PROBLEMS 37 (1950).
27
Id.
28
present Charter shall prevail.” While it still remains a question as to whether a vague
authorization of international intervention like UN General Assembly Resolution 1483
29
concerning Iraq can derogate from the clarity of the Hague Convention, a strong case can
nonetheless be made that the contemporary UN system allows for a robust international
role in state-making and constitution-making of states torn by civil conflict.
Though the traditional vocabulary of constituent power cannot be deployed to deny the
partial legal quality of external constituent involvement, the question of legitimacy
remains. If the UN’s legal framework makes such a role legal under certain circumstances,
what makes it legitimate? In other words, what are the legitimating and countervailing
principles that limit the exercise of constitutional autochthony?
In justifying the international law in state-making and constitution-making processes in

certain societies, one should rely on the qualified acceptance of the normative legitimacy
of contemporary international order. It is qualified because the empirical track record
demonstrates that the external constituent involvement has been quite unsuccessful at
engendering sociological legitimacy of imposed constitutional settlements outside of Japan
or Germany. For example, the life span of constitutions imposed by colonial powers after
30
the Second World War has been astonishingly short.
The best case for the legitimacy of an international role in state-making and constitution-
making stems from the normative promises of the UN system itself, the purpose of which
is the preservation and restoration of peaceful relations among sovereign states. The UN
Charter specifically authorizes the Security Council to take binding measures to “maintain
31
or restore international peace and security.” While there are no specific provisions
allowing the Security Council to intervene in civil wars, it is increasingly understood that
civil wars involve the peace and security of many other states, either due to their spillover
effects or because of interventions by outsiders. Finally, the gravest challenges to domestic
28
Julian Arato, Constitutionality and Constitutionalism Beyond the State: Two Perspectives on the Material
Constitution of the United Nations, 10 INT’L J. CONST. L. 627 (2012).
29
See the contrary arguments in ANDREW ARATO, CONSTITUTION MAKING UNDER OCCUPATION (2009) and EYAL BENVENISTI,
THE INTERNATIONAL LAW OF OCCUPATION (1993). Julian Arato argues that it is important to look at the kind of treaty
we are presumably derogating from in order to determine how strongly we should resist lex posterior when there
is a problem of lex specialis. Treaties like the Hague convention are integral, absolute obligations—very different
from merely reciprocal agreements like trade treaties. See generally Julian Arato, Accounting for Difference in
Treaty Interpretation over Time, in INTERPRETATION IN INT’L LAW (D.C. Peat et al. eds., 2015).
30
As an example, the BIA of 1935 was, at best, only partially instituted in India because of the resistance of the
princely states. See GRANVILLE AUSTIN, THE INDIAN CONSTITUTION (1966). See generally Julian Go, Globalizing
Constitutionalism: View from the Post-Colony 1945-2000, in CONSTITUTIONALISM AND POLITICAL RECONSTRUCTION (Samir
A. Arjomand ed., 2007).
31
U.N. Charter art. 39.
constitutions, namely revolution and secession, are the very forms of political conflict that
involve—or at least tend to lead to—civil war, as we have recently witnessed in the case of
Ukraine. This overarching telos justifies the interest of the international community in
avoiding or resolving civil wars, even by actively engaging in the domestic constituent
processes of the polities, which endangers international peace and security.
III. State and Constitution: The Two-Stage Process
One thing bears repeating, however: The assertion of a significant international interest
does not cancel out the principle behind autochthonous domestic constitution-making,
namely sovereign equality. Sovereign equality as the central commitment of contemporary
international law militates against constitution-making whereby a domestic political
community becomes simply the ward of other states or even of the international
community and its organs.
There are a variety of possible solutions to the normative conflict involved between
legitimate external intervention on the one hand and constitutional autochthony,
grounded in sovereign equality, on the other hand. One of the advantages of the South
African two-step method of constitution-making is the analytical differentiation between
32
state-making and constitution-making.
This idea is equally promising when international actors are involved in constituent
processes of polities marred by civil strife that endangers international peace and security.
In that context, the international role should—in principle—be restricted to state-making,
in the sense of its involvement in the territorial definition as well as the identification of
the relevant population of the state in question.
While the domestic constituent power would certainly be affected by such a first stage of
33
state-making, it would gain full control over the second stage. In fact, this idea is
consistent with Carl Schmitt’s thesis that the possibility of the nation as the bearer of
constituent power is previously completed during the process of state formation. Though
Schmitt seemed to consider state-formation as an exclusively domestic affair—even for the
examples he had in mind in Verfassungslehre—the international dimension of state-
making was always implicitly present, implicating emergent states in a larger international
field of struggles and alliances with their territories carved out as the result of this complex
process.
Though positing a clear analytical and normative distinction between the two stages in the
constituent process is useful, it is difficult to maintain in practice. Consider, for example,
32
See ARATO, supra note 29 and accompanying text.
33
See SCHMITT, supra note 8, at 21–22; 6: II: 2-3, 47-49.
the interim constitutions of Iraq—which was a complete constitution—where external

involvement was hardly restricted to the stage of state-making alone. In Iraq, the US actors
that have played a critical role in adopting the Transitional Administrative Law were
equally interested in constitutionally entrenching a particular version of federalism,
34
governing institutions, and fundamental rights. From a practical point of view, then, it is
important to emphasize the role of prudence and self-limitation. It is possible, even for an
occupying power, to impose self-limitations on its involvement in constitution-making
abroad. In the case of occupied Germany, for example, the Allied commanders-in-chief
insisted on a more federal-like structure than the majority of makers of the Grundgesetz at
Chiemsee were initially ready to establish, but nonetheless resisted the temptation to
interfere with the form of government and other constitutional issues, including the status
35
of the process, and its final outcome.
At the very least then, the distinction between state- and constitution-making linked to a
two stage process could mean that external actors should restrict their input to the first
36
stage, and even then to a few topics that clearly pertain to the territorial structure of the
state. Admittedly, this would leave out human rights, a key concern of the international
community today. Nevertheless, there is an independent basis to insist on the inclusion of
an extensive table of fundamental rights in both interim and final constitutions. Here, the
interplay between state succession and state recognition should enable the entrenchment
of human rights obligations in the constitutions of the new, or reconstituted states. Human
rights obligations remain obligations of old states that are engaged in the making of new
constitutions, just like the financial obligations that survive revolutions. The same is
partially true in the case of secession, partition, and state fragmentation—at least to the
extent that there is usually a successor state inheriting the obligations. While the same
may not be true for all the succeeding states, and especially entirely new states created by
secession, here, the conditionality of international recognition can and should require
accession to all human rights treaties and conventions that find their way into new
37
constitutions.
34
See NOAH FELDMAN, WHAT WE OWE IRAQ: WAR AND THE ETHICS OF NATION BUILDING 66 (2009).
35
See PETER MERKL, THE ORIGIN OF THE WEST GERMAN REPUBLIC (1963). The commanders preferred a constituent
assembly and a final constitution; the German actors preferred the reduced status of a Parliamentary council, and
a supposedly interim “basic law.”
36
Oklopcic, too, uses the idea of “early” against “late” intervention that has the advantage of applicability to one
stage processes, or those where the distinction among stages is less than clear cut. But he seems to be less
demanding in terms of the restriction of the power to only certain topics. See generally, Zoran Oklopcic,
Introduction: The Crisis in Ukraine Between Law, Power, and Principle, 16 GERMAN L.J. 350 (2015); Oklopcic, supra
note 4.
37
Here, another aspect of intervention comes into play—recognition. States can intervene in the negative—at
least during state creation—by refraining from recognizing the existence of the putative state until certain
concopditions are met. This is a legal and normal part of the state formation process.
As demonstrated by the history of post-Communist transitions in Central and Eastern

Europe, a more extensive external role in constitution-making can be justified if existing
states seek to join treaty organizations, or larger, hybrid political structures such as the EU.
While the international community does not require representative democracy and the
38
rule of law from its member states, the EU, or the Council of Europe, does require them.
At the very least, the voluntary pursuit of membership on behalf of those states legitimates
extensive external “advice” concerning the content of their constitutions as the
39
precondition of their ongoing participation in those institutions. Rather than a pouvoir
irritant, the external constituent involvement in the constitutional affairs of these
countries involves the exercise of power to the extent that admission—or non-admission—
is a serious form of political sanction, capable of effecting meaningful constitutional
change.
IV. Foundation and Re-Foundation
The difference between the foundation and the re-foundation of states further refines the
distinction between the first state-making and the second stage constitution-making in the
two-step constituent process. In the context of founding a new state, the role of the
external actors in the constituent process is necessarily more pronounced. In certain
contexts, such as in Iraq, one conceptual question and one normative question mutually
overlap between foundation and re-foundation.
The conceptual question presents itself in contexts where a polity is only re-founded and
the external constituent role nonetheless operates at the stages of both state-making and
constitution-making. Consider Iraq, for example. In spite of the destruction of its
governmental apparatus following the 2003 invasion, there was never any doubt about the
40
continuation of Iraq’s sovereign statehood in its internationally recognized boundaries.
One could understand the “regime-change” as the replacement of Iraq’s formal—as well as
material—authoritarian constitution by new constitutional structures. The role of external
actors should have been seriously limited, given that the re-foundation of Iraq was not a
case of state-making.
38
See, for example, the so-called Copenhagen Criteria, Presidency Conclusions, COPENHAGEN EUROPEAN COUNCIL (Jun.
21–22, 1993), http://www.europarl.europa.eu/enlargement/ec/pdf/cop_en.pdf (last visited Jun. 5, 2015). See
also Statute of the Council of Europe, May 5, 1949, 1949 O.J. art. 3.
39
See Statute of the Council of Europe, May 5, 1949, 1949 O.J. art. 8.; see also Treaty on European Union, Feb. 7,
1992, 1992 O.J. art. 7.1.
40
Stuart Elden, Territorial Integrity and the War on Terror, 37 ENVIRONMENT AND PLANNING A 2083, 2084 passim
(2005).
The fall of the authoritarian Iraqi regime also brought down its highly centralized territorial
structure, encouraging many previously suppressed political forces to demand the re-
41
foundation of Iraq as a decentralized, federal, or even confederal state. These political
forces conflicted directly with those that remained deeply committed to the maintenance
of a unitary state under the heading of the integrity of Arab Iraq. The struggle between
these forces took place under the threats of secession by the Kurdish enclave that
42
established itself as the Kurdistan Regional Government. Acknowledging the early calls
for the partition of Iraq, some version of federalism seemed to be the only solution on
which the peace of the country and even region would depend, but it was hard to see how
an acceptable “second best” formula for all the relevant sides could be arrived at. Under
these circumstances, by no means unique, the regional and international communities’
interest in Iraqi state re-foundation was possible to demonstrate and document. But could
that interest leading to outside inputs be normatively justified?
The intervention that actually that took place in Iraq would be difficult to justify in terms of
43
the normative considerations offered here. For one thing, it did not limit itself to state re-
44
formation nor even to fundamental rights. Nor did it merely concern the first stage of
transformation. The normative question presents itself more glaringly in the context of the
founding of the state, where the object of external constituent involvement is determining
the territorial scope of a new polity. In that context, questions of normative justification
shape the attitude and the behavior of external actors during the foundation of a new
state. Should they support demands for secession, as in the context of Iraqi Kurdistan?
Should they support partition or the maintenance of its independent federal state? Here,
neither the idea of constitutional autochthony nor the ideals of sovereign equality can
independently determine the legitimate scope and direction of external constituent
involvement.
The only relevant literature that addresses this problem, if peripherally, concentrates on
45
the normative-ethical analysis of the problem of secession. While secession and
constitutional intervention are analytically separate problems, they meet in the context of
41
The federalization of Iraq would have—and indeed has—occurred by devolution as in “holding together”
variants, rather than by a contract of pre-existing “states” as in “coming together federations.” For this
distinction, see ALFRED STEPAN, ARGUING COMPARATIVE POLITICS 320 (2001).
42
Sujit Choudhry, Old Imperial Dilemmas and the New Nation Building: Constitutive Constitutional Politics in
Multinational Polities, 37 CONN. L. REV. 933, 941 (2005).
43
See ARATO ,supra note 29.
44
In terms of other criteria argued here, there was also no limitation of the intervention to procedure, beyond the
question of rights, and it was mainly unilateral under a very vague enabling SC Resolution (1483).
45
For one such approach, see generally, Amandine Catala, Secession and Annexation: The Case of Crimea, 16
GERMAN L.J 581 (2015).
the delineation of the legitimate international role in the context of state re-foundation.
Without an ambition to defend the relevance of normative theorizing for post-conflict
constitution-making, this essay hazards six propositions that should guide—and limit—the
behavior of the external actors when they exercise their power of intervention in the
46
context of founding new—and re-founding existing—states:
1. There are strong moral arguments for the legitimacy of unilateral

secession, only under the circumstances of present or relatively recent
past injustices. Examples of those injustices include colonialism, military
occupation, or grave and persistent oppression and political
discrimination on behalf of the extant government.
2. Unilateral secessions are not justified and should be opposed by

external parties if present and past political injustices can be remedied
through less radical forms of intrastate constitutional protection. In that
case, international interveners should throw their weight behind such
constitutional proposals during the second stage in the two-step
process.
3. Federal constitutional systems are among the most suitable forms of

remedying past injustices, especially in multinational, deeply divided
societies.
4. As it currently stands, international law is relatively hostile towards

47
unilateral secession for robust consequentialist reasons. International
interveners should respect this stance, irrespective of their normative
visions of international legal order.
5. While international law remains hostile to unilateral secession, the

external actors involved in a two-step constituent process should not
lose sight of the ideal of constitutional autochthony. Though its meaning
in deeply divided societies remains disputed, Reference Re Secession of
48
Quebec of the Supreme Court of Canada points in a useful direction. By
46
See Diane Orentlicher, International Responses to Separatist Claims: Are Democratic Principles Relevant?, in
SECESSION AND SELF DETERMINATION 19 (Allen Buchanan & Stephen Macedo eds., 2004); Allen Buchanan, The Quebec
Secession Issue: Democracy, Minority Rights and the Right to Secede, in SECESSION AND SELF DETERMINATION 238
(Allen Buchanan & Stephen Macedo eds., 2004). For the exception in this volume, see Donald Horowitz, A Right to
Secede?, in SECESSION AND SELF DETERMINATION 50 (Allen Buchanan & Stephen Macedo eds., 2004), who provides
strong political arguments that implicitly explain and even justify the bias against secession in international law.
47
See Oklopcic, supra note 4.
48
See Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.).
mandating the process of constitutional negotiations over the destiny of

polity’s territory, the Supreme Court of Canada has rejected the
unilateral imposition of constitutional solutions by either side in the
49
conflict. Such constitutional negotiations should be supported by
interested international actors, as well.
6. International law is, or at least should be, open to unilateral secession

where claims of injustice convincingly resemble the conditions of
colonized, namely political dispossession and heteronomy. Even in such
cases, there could and perhaps should be an international bias against
secession if other avenues of self-determination, such as federalization
or the establishment of cultural autonomy, can be negotiated.
Secession and federalist devolution are obviously related problems. If the international
community has a bias against unilateral secession that could endanger the peace and
security of a region and beyond, this would imply a preference for federal solutions
remedying injustice, removing the source of conflict while preserving territorial boundaries
of the existing states. In that case the same community has an interest that can justify
intervention in debates concerning the structure of states or federal polities that are
designed to avoid, or legitimately substitute for secession. This interest, then, implicates
international actors also in re-foundations; under conditions of serious social division,
where there is a secession threat.
V. Substance and Procedure (and the Procedures for Intervention)
While external participation in the two-step constituent process in the context of deeply
divided and other troubled states is justified on normative and prudential grounds, it
leaves open important questions of the substance versus the procedure of the intervening
participation. Emphasizing procedures over substance can increase the legitimacy of the
international role, especially if the final settlement is achieved under a certain veil of
50
ignorance. External involvement focusing on the procedures is also more likely to
empower domestic actors during both stages of the constituent process.
49
See id. The condition being a clear vote of the province on a clear question. The purpose of clarity was
subsequently highly disputed. David Haljan has recently argued that clear majority only triggers the negating
process the direction of which remains subject to negotiations themselves. See DAVID HALJAN, CONSTITUTIONALISING
SECESSION 343 (2014). For a critique of this position, emphasizing that the clear majority must logically the duty of
the government to enter into negotiations towards the satisfaction of the demand to secede see Zoran Oklopcic,
The Anxieties of Consent: Theorizing Secession between Constitutionalism and Self-Determination, 22 INT’L J. ON
MINORITY & GRP. RTS. 259, 268 (2015).
50
The case of East Timor, according to Dann & Zaid, supra note 3, indicates that such a distinction is possible.
Alternative procedures can also have different substantive consequences. In East Timor, the procedures imposed
had strongly majoritarian outcomes. See also Louis Aucoin & Michelle Brandt, East Timor’s Constitutional Passage
The constituent process should bring together all relevant domestic actors elected using
the system of proportional representation. The constitutional settlement should be
adopted by consensus, avoiding, to the extent possible, majoritarian decision-making.
Power-sharing mechanisms and sunset clauses should accompany the settlement,
reconciling the dominant imperatives of inclusion at the first stage and effective
decision-making at the second stage. To this end, the adoption of an intermediary step—
an interim constitution—may contribute to the legitimacy of the final constitutional
settlement.
Note, however, that the shift towards procedure does not, in itself, solve the problem of
the extent and limits of legitimate intervention. A case in point are the actions of the U.S.
Ambassador Khalilzad, who, under the instructions of the State Department, engineered
Sunni inclusion in the second stage of the constituent process in Iraq, after the aspirations
of this group have been neglected, or avoided, during the first stage of this process, under
American supervision. However, such very high level of procedural intervention on behalf
of the United States could not be seen as legitimate (i.e. in the sociological sense of
legitimacy), after the free elections in Iraq have already taken place (even given the unwise
51 52
choice of electoral rules by UN advisors )—and the results were disastrous. In other
words, what may have been possible and appropriate during the first phase of state
making was no longer possible during the final stage of constitution making. The important
lesson here is that even procedural external intervention must recognize important limits,
especially since all procedures have distributional consequences, and are often assumed to
have substantive implications by important domestic actors, who may have preferred
alternative procedures.
VI. Who Has the Right to Intervene?
A summary of the previous five points provides important context for discussing the
intervention of external actors. International participants in the domestic constituent
process must respond to the imperative of legality. From that vantage point, the normative
justifications for this involvement have been diverse, including imperial sovereignty,
international delegation, and UN resolutions. Historically, a myriad of external actors—
individual states, colonial or occupying powers, and regional and international
to Independence, in FRAMING THE STATE: CASE STUDIES IN CONSTITUTION MAKING 265–68 (Laurel E. Miller & Louis Aucoin
eds., 2010).
51
Influencing electoral rules for the making of the final constitutions seems to be a legitimate area of external
role. Indeed the fairest constituent assembly electoral rule is, other things equal, a highly proportional rule such
as a single district rule with no thresholds. Under Iraqi conditions of civil war in Sunni areas such a rule was
however disastrous. International inputs can be just as mistaken as domestic choices. ARATO, supra note 29, at
208-210.
52
Id.
organizations—exercised their power in the process of constitution-making in other

polities.
Irrespective of the legal framing of the external constitutional involvement, and the
concrete identity of the external actors, their involvement must in any event respond to
the ideal of legitimacy, more specifically, constitutional autochthony. In other words,
external constituent involvement should occur only when the peace and security of the
international community is at stake, and should, with the main exception of human rights
be restricted to the stage of state-making, leaving the stage of constitution-making to
53
domestic actors themselves. Restricted in such a way, external actors should focus more
on procedures rather than on constitutional substance.
In addition to considering the legal grounds for external constituent involvement, two
other factors play an important role in determining who has a right to intervene today: (1)
The complex interplay between sociological and normative legitimacy; and (2) the
geopolitical interests of powerful external interveners. Such interveners often have vested
national interests in a particular constitutional outcome, which may help protect them long
after they have left the scene. In some cases, an external intervener may seek a strong ally
and thus prefer a centralized constitutionalized structure for a state. In other cases, fearing
a strong competitor or seeking to preserve a foothold for an ongoing political interference,
an external actor may push for a high level of constitutional decentralization. While the
interest of peace and regional security can sometimes legitimize the soft involvement of
external actors in the second stage of the two-step constituent process, the national
interests of rival or regionally dominant states does not.
The destructive consequences of the role of American interests in constitution-making in

Iraq are fully on display today, a sad testament to the noxious role the national interests of
external interveners can play in domestic constituent processes. We should be aware of
these recent lessons even though untrammeled external constituent involvement has
occasionally resulted in a constitutional happy end, such as in Japan. Be that as it may,
those who might argue the question of normative legitimacy and public perception in the
context of externally imposed constitution-making today should remember that the formal
use of amending procedures under the Meiji Constitution kept the American-owned
54
Japanese constitutional process a secret from the public.
53
The selection of local participants should not rely on the formalistic understanding of domestic constitutional
order. As Jennifer Widner argued, “Informal practices [in the process of constitution-making] may help promote a
‘long view’ too.” Jennifer Widner, Constitution Writing in Post-conflict Settings: An Overview, 49 WM. & MARY L.
REV. 1513, 1518 (2008). For the importance of local political knowledge in endangering political order and stability,
see generally Nehal Bhuta, New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional
Transformation, 60 U. TORONTO L. J. 799 (2010).
54
Tom Ginsburg, Zachary Elkins & James Melton, Baghdad, Tokyo, Kabul: Constitution Making in Occupied States,
49 WM. & MARY L. REV. 1139, 1161 (2007).
Under the contemporary conditions of relative publicity, the unjust imposition of a

constitution on behalf of an external intervener may reinforce rigid, uncompromising
perspectives of involved domestic actors, leading to a widely perceived sense of
constitutional illegitimacy in the sociological sense. Thus even a constitutional
55
settlement—such as the British India Act of 1935, which proposed a very reasonable
federalist system that would have kept India together and went a long way to reconcile the
56
expectations of two major contending sides —might be and indeed was denounced from
the beginning as illegitimate by domestic actors, even when they are unable to generate
their ‘horizontal’ own constitutional compromise. More than a decade later, main parties
were still unable to agree on another British attempt to preserve the constitutional unity of
57
India, the Cabinet Mission Plan, which might have prevented much of the bloodshed that
ensued after the partition.
The limitations presented in this article can lessen opportunities for normative injustice to
a certain extent, but the sociological problem of perceived injustice remains. For example,
while it was normatively justified for the U.S. to seek to include an unelected Sunni
contingent in the Iraqi constituent process, even in its second stage, this inclusion—
perceived domestically through the lens of presumptive American political and military
self-interest—was never accepted as legitimate by other actors, who ultimately excluded
58
the co-opted Sunni participants from the most important stage of the process. The cost,
in the eyes of almost all Sunni activists, was the legitimacy of the constitutional settlement
of 2005.
The question of external intervenor’s bias and self-interest in the process of constitution
making —whether genuine or perceived—leads us to nuance the character and the
identity of the bearers of normatively legitimate external constitutional intervention.
Various available documents show, for example, that from Sergio di Mello to Lakhdar
Brahimi, UN missions offered better advice to Iraqi participants, though the UN too has
made key mistakes concerning the choice of electoral rules in 2004. The lesson here is that
the bodies that can be seen as representing genuine international interests, whose
composition reflects the plurality of international community itself, are not only more
55
Government of India Act, 1935, 26 Geo. 5 & 1 Edw. 8 c. 2 (Eng).
56
As expressed in the (Motilal) Nehru Report (1928), https://sites.google.com/site/cabinetmissionplan/nehru-
report-1928-full-text/doc1 (on file with author), proposing the dominion status for India and the Fourteen Points
of Jinnah.
57
For a detailed description of the emergence of the Indian constitution, see AUSTIN, supra note 30. For the
political dynamic preceding and following the rejection of the Cabinet Mission Plan see Robert Johnson, Britain’s
Decolonization of India and Pakistan, in AT THE END OF MILITARY INTERVENTION: HISTORICAL, THEORETICAL AND APPLIED
APPROACHES TO TRANSITION, HANDOVER AND WITHDRAWAL 86, 95–98 (Robert Jackson & Timothy Clack eds., 2015).
58
ARATO, supra note 29, at 230.
legitimate in both the normative and, the sociological sense, but are likely to be cognitively
superior.
Equally, if wide inclusion of different and competing perspectives is important for domestic
59
constitution makers , it is also important for the composition and procedures that concern
external participation. Wrongly designed, even an international advisory mission may end
up being seen as favoring one side over another, or as being biased towards a concrete
constitutional proposal. Though we don’t have access to alternative political universes, one
could imagine that a lasting and more equitable constitutional outcome in Israel/Palestine
might have been achieved had the federalist views of the UN Special Committee’s minority
60
proposal on the disposition of the Palestine Mandate been heeded in 1947.
It is important to stress that settling the matter of who should intervene does not negate
the thesis about limitations. It could of course be argued, pragmatically, that the better
and more legitimate the external agency, the more leeway there is to go further, to
intervene later, in matters of substance as well as procedures, and in the design of the
regime as well as the state. However, easy admission of an “international pouvoir
constituant”, would negate all that should and could have been learned in recent
constitution making experience, both from the stories of success as well as from the stories
of externally-imposed constitutional failure. The most that should be said is that the
balance between a procedurally legitimate form of intervention, the need to limit its role
and constitutional result cannot be established once and for all, and would depend on the
aspirations and experience of specific communities and their divided parts. With this in
mind, I return to the problem of the external influence and (post-conflict) constitution
making in present-day Ukraine.
C. The Role of International Actors and the Challenge of Constitution-Making in Ukraine
As with every conflict that calls for external constituent involvement, the crisis in Ukraine
features conflicting political narratives. On the one hand, the Russian narrative has justified
secessionist attempts by invoking the political disenfranchisement of pro-Russian citizens
of Ukraine that resulted from the overthrow of the Ukrainian government, freely elected
and supported by the democratic votes of the Eastern regions. Russia has invoked the will
of the people, manifested in its referendum on independence, in support of the secession
of Crimea. On the other hand, the narrative of Ukraine, supported by the EU and the
United States, is diametrically opposite: The Maidan uprising was an act of liberation from
a corrupt government supported by Russia, and the referenda held in the three enclaves,
59
The elective affinity of wide inclusion with constitutionalism has been demonstrated by Tom Ginsburg with his
insurance model. See generally, TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN
CASES (2003).
60
See, supra note 21, at 65, 69, for the majority and minority proposals, and resolution itself.
as well as the subsequent elections in Donetsk and Luhansk, were unfree and entirely
manipulated.
In defending its narrative, Ukraine rightly draws upon the principle of territorial integrity,
one of the cornerstones of contemporary international law, which logically entails the ban
on annexation of territory. International law bans annexation as a result of military conflict
and occupation whether of the West Bank by Jordan, the Golan Heights and East Jerusalem
by Israel, East Timor by Indonesia, Kuwait by Iraq, or the Crimea by the Russian
61
Federation. The UN General Assembly in a non binding resolution 68/262 (March 27,
2014) rejected the annexation of the Crimea. The Resolution reaffirmed the principle of
territorial integrity in the context of the conflict in Ukraine by a vote of one hundred to
62
eleven, although the vote surprisingly featured fifty-eight abstentions. Yet, as several
abstaining countries correctly noted in the assembly debate, the vote, in itself, will not
63
help achieve a negotiated constitutional settlement.
The international community should try to do better than pass resolutions in the support
of one side, regardless of the apparent legal merits of either side’s case. Though the
international “verdict” about the illegality of Russian annexation is hardly disputed, legal
considerations alone do not exhaust the question of the legitimacy of the secession of
Crimea or the Donetsk and Luhansk oblasts. While international legal doctrine may favor
clear-cut judgments, external actors involved in the re-foundation of Ukraine should pay
careful attention to both competing political narratives, especially given the danger of new
military confrontations and the possibility of another destructive Cold War.
Ukrainian authorities have already initiated a constituent process featuring a new

constitutional commission, but proceeding with this project unilaterally will not, in all
likelihood, resolve the political conflict over the scope and the extent of Ukrainian
64
sovereignty. Even if the commission offers important concessions to the Eastern regions
of the country, these will likely be seen as inadequate if they are imposed by the
61
According to the article 47 of the Fourth Geneva Convention (1949), “Protected persons who are in occupied
territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present
Convention …by any agreement concluded between the authorities of the occupied territories and the Occupying
Power, nor by any annexation by the latter of the whole or part of the occupied territory”. According to the UN
General Assembly Resolution 2625 (XXV) (24 October 1970) (also known as the Declaration on Friendly Relations
), “territory of a state shall not be the object of acquisition by another state resulting from the threat or use of
force”.
62
General Assembly Adopts Resolution Calling Upon States Not to Recognize Changes in Status of Crimea Region,
(2014), http://www.un.org/press/en/2014/ga11493.doc.htm (last visited June 18, 2015).
63
Id.
64
Presidential Decree No. 119/2015 on the Constitutional Commission,
http://www.constitutionnet.org/vl/item/presidential-decree-constitutional-commission-ukraine-no-1192015.
government of Ukraine. By the same token, the sociological legitimacy of the new
constitutional settlement will be endangered if Ukrainian sovereigntists perceive
internationally mediated process as violating the fundamental sovereignty of the Ukraine.
In contrast to doctrinal application of international law or the acceptance of unilateral

constitutional impositions of whichever side in the conflict, an alternative course of action
exists: the creation of an international commission. Supported both by the United States
and Russia, the UN Security Council or the Council of Europe should appoint an
international commission tasked with examining all competing claims in the conflict. This
international commission should take seriously the allegations of oppression that have
informed the demands for the secession of Crimea—and for territorial autonomy of
Donetsk and Luhansk. If the allegations prove to be unjustified, the international
commission should embrace the spirit of the approach to secession present in the
Canadian Secession Reference. This would mean two things. First, the commission would
be justified in insisting on new and, this time, procedurally legitimate referenda to
establish the will of those regions desiring the change in their political status. Second, if the
popular will in those referenda yield a clear majority in favor of secession—or
65
federalization, as seems to be the primary demand of Luhansk and Donetsk —the
international commission would be justified in insisting on the opening of political
negotiations which would put both sides under a duty to negotiate in good faith. In setting
the stage for such negotiations, the procedural task of the commission would be to make
sure that all main actors are included in the process of negotiations.
This brings us to the crucial point: What would be the exact task of such negotiations?
International law has an implicit bias towards the maintenance of a territorial status quo,
irrespective of its recent doctrinal fuzziness. Without entering into the salience of such a
doctrinal stance, it acts to establish the scope of the international constituent involvement
in the re-foundation of Ukraine. However, the bias of international law towards territorial
integrity can be maintained while accommodating the political conflict in Ukraine along
federalist lines. This is something that many among the secessionists in Luhansk and
Donetsk claim to prefer, when they rebel against new authorities in Kiev. On the other
hand, claiming to be animated by the fears of Russian hegemony, the authorities in Kiev
insist on the maintenance of the unitary character of Ukraine and offer eastern regions a
66
weaker form of autonomy instead.
65
See Luhansk Regional Council Head: Ukraine Needs Federalization, Decentralization not enough, KYIV POST, May
17, 2014, http://www.kyivpost.com/content/ukraine/luhansk-regional-council-head-ukraine-needs-
federalization-decentralization-not-enough-348254.html; see also Vladimir Socor, Donetsk, Luhansk Propose
Amendments to Ukraine’s Constitution, EURASIA DAILY MONITOR, May 19, 2015,
http://www.jamestown.org/programs/edm/single/?tx_ttnews%5Btt_news%5D=43927&cHash=8662cb51504458
29740407118af00284#.VXSrFWRVikp.
66
Gwendolin Sasse & James Hughes, Building a federal Ukraine?, WASHINGTON POST, Mar. 19, 2014. For an
argument in favor of federalism in Ukraine, see KYIV POST, http://www.kyivpost.com/opinion/op-ed/ukraine-
Even within such radically opposing views on territorial autonomy, there is room for
constitutional compromise. The concrete application of the federalist principle may lead to
creative constitutional solutions, which may blur the sharp theoretical distinction between
federalism and decentralization, alleviating the worries of the Ukrainian government in the
process.
D. Conclusion
The conflict in Ukraine presents a challenge for post-conflict constitution-making and for
the way in which we conceptualize the international role in domestic constituent
processes. Clarifying the limits and parameters of the international role contributes to both
the normative and sociological legitimacy of new constitutional settlements. Critical to
structuring those limits and parameters has been the idea of a two-stage constituent
process, restricting—with the important exceptions mentioned in this article—the external
role to the first stage and allowing for a politically autochthonous second stage. In Ukraine,
the final constitutional settlement—defining the territorial and constitutional structure of
the country—must arise from the consensus among all relevant domestic parties to the
conflict. As the Minsk II agreement testifies, however, without the activist international
involvement, the preservation of Ukrainian territorial integrity of the state, even if upheld
by positive international law, will remain even more dubious. More importantly, regional
and international peace and security will remain seriously endangered without it.
should-consider-federalism-11141.html. For an argument against federalism, claiming that a confederation would

be a superior constitutional form for Ukraine, see RUSSIAN INSIDER, http://russia-insider.com/en/2015/02/04/3133.

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GERMAN LAW JOURNAL

Vol. 16 No. 03 Pages 350-712 01 July 2015

THE CRISIS IN UKRAINE

Introduction: The Crisis in Ukraine Between the 350-364

The Annexation of Crimea and the Boundaries of 365-383

TABLE OF CONTENTS PAGE I

The Virtues of Bright Lines: Self-Determination, 384-415

How to Uphold the Territorial Integrity of Ukraine 416-433

Ukraine, International Law, and the Political 433-451

Deconstructing the Conflict in Ukraine: The 452-478

The Ukraine Crisis, Cold War II, and International 479-522

Sovereignty and Crimea: How Referendum 523-541

Yaniv Roznai & Silvia Suteu

The Eternal Territory? The Crimean Crisis and 542-350

TABLE OF CONTENTS PAGE II

Secession and Annexation: The Case of Crimea 581-607

Territorial Conflict and Territorial Rights: The 608-630

“Trust the People”? Democratic Secessionism and 631-657

The Idea of Early-Conflict Constitution-Making: The 658-690

International Role in State-Making in Ukraine: The 691-712

TABLE OF CONTENTS PAGE III

Introduction: The Crisis in Ukraine Between the Law, Power,

A. Between Self-Determination and Territorial Integrity: Doctrinal Frames of

B. Class Struggles, Professional Commitments and Wider Frames: Enlarging the

international legal scholarship. Rather than staying in the register of doctrine—and

Outi Korhonen also focuses on the socioeconomic register of self-determination struggles.

C. The Crisis in Ukraine: Between Democratic Legitimacy and Constitutional Identity

If a comparative constitutional law perspective sheds light on the predicament of

Having offered a means to understand the democratic and quasi-democratic demands of

E. The Conflict in Ukraine Between Normative Reform and Conceptual Revision:

Building on the normative value of increased aggregate satisfaction of individual

Arato’s articulation of a legitimate international role in domestic constituent processes

The Annexation of Crimea and the Boundaries of the Will of the

The secession of Crimea and—more broadly—the conflict in Ukraine reopened questions

involvement. Such an illegality cannot be “cured” by a democratically expressed will of the

B. Self-Determination Versus Territorial Integrity

Nothing in the foregoing paragraphs [concerning the

question of unilateral secession, unilateral declaration of independence is not per se illegal,

I. How About Remedial Secession?

The recognized sources of international law establish

a people’s pursuit of its political, economic, social and

If the state persists in serious injustices toward a group,

Yet, international law understands colonialism in the so-called salt-water definition—that

[W]e hoped that Russian citizens and Russian speakers

II. Constitutive Recognition

The ultimate success of . . . a [unilateral] secession

constitutive formula”: where an attempt at secession is unilateral, widespread recognition

Foremost, statehood is not an objective physical fact. Statehood is legal status of a

C. The Use of Force and the Limits on Neutrality of International Law

[T]he illegality attached to [some other] declarations of

a declaration itself might be illegal where it tries to consolidate a situation created in

It is true that several resolutions of UN organs called for non-recognition in these

This is where the neutrality of international law on declarations of independence ends. In

[T]he obligation of non-recognition has a declaratory

the obligation of withholding recognition is not the

In sum, unilateral secession is unlikely to be effective, but effectiveness could be procured

D. Democratic Expression of the Will of the People

I. The Legal Effects of Independence Referendums

As independence is not an entitlement, holding a referendum is only a necessary, but

It follows that independence referendums generally do not have direct or self-executing

II. Clear Expression of the Will of the People

[A] clear expression of the will of the population of a

The Scottish question was exceptionally clear: “Should Scotland be an independent