Neha Gupta asked: Is there a right of self-determination under international law? If yes, then what are the exact contours of the right? Does it mean the right to secede at will? Please explain in the context of ongoing crisis in Ukraine.

Rajorshi Roy replies: Yes, there exists a right to self-determination under international law even though it remains one of its most contentious principles. In the past, it was primarily justified to secure the independence of colonial countries and peoples. The United Nations (UN) defines self-determination as the right of all peoples to freely determine their political, economic, social, and cultural development (Article 1 [1] of International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights). Various UN resolutions have enumerated that self-determination can take the form of independence from a state to the establishment of a federation/association and even integration with another state. The international norm of self-determination widely rests on the principle of ‘persecution of distinctive people at the hands of an oppressive state that made it virtually impossible for them to seek recourse’. While this may seem pretty straight forward, but the process is contentious and rests primarily on the debate between self-determination/unilateral secession and territorial integrity of nation states. Nevertheless, the methods of resolving cases of self-determination have now been broadened that would otherwise have left secession as the only viable option.

In the context of the ongoing Ukrainian standoff, Russia has justified Crimea’s takeover on the basis of Crimean people’s overwhelming decision to seek a re-unification with it. In the elections, over 90 per cent of the Crimeans had voted for integration with Russia. Moscow has put forth a number of arguments justifying the self-determination process and the subsequent takeover: (a) Crimean people have a right to self-determination, the referendum is the sovereign right of its legitimately elected parliament and is in line with UN Charter (b) there was a need to protect the majority ethnic Russians in Crimea at a time when anarchy reigned in Ukraine due to the illegal overthrow of former President Viktor Yanukovych’s government. Russian President Vladimir Putin had referred to the presence of ‘extremists and neo-Nazis’ in Kiev who were likely to persecute the ethnic Russians (c) long association and importance of Crimea to Russia before it was wrongfully given away to Ukraine in 1954. The region is the seat of Orthodox Christianity and was the epicentre of some of Russia’s key historical battles (d) Crimean conditions were similar to the independence of Kosovo from Serbia that was justified by the ‘West’. The Kosovo incident had therefore set the precedence.
On the other hand, critiques consider Crimean self-determination as illegal on the following grounds: (a) lack of evidence of ethnic Russians being persecuted by the government in Kiev (b) no opportunity was given to resolve the matter internally (c) elections were conducted in utmost haste and under the barrel of the gun. The referendum of Scotland that Russia also referred to, involved years of negotiations. Moreover, Ukrainian citizens staying outside Crimea did not participate in the elections (d) Interests of minorities in Crimea, like those of Tatars who have had a long history of persecution under Stalin, were not taken into account (e) Russia also ignored the Budapest agreements and showed complete disregard for Ukraine’s constitution and its territorial integrity.
Therefore, the Crimean developments highlight the contested and ambiguous nature of the right to self-determination. Both Russia and the US have taken different positions at different times in order to suit their respective interests. As a result, power and core interests of key states, to a large extent, influence the adjudication of a self-determination process.

Posted on April 06, 2015