People attend a pro Russian rally at a central square in Donetsk, eastern Ukraine. More than 5,000 pro-Russia residents of this major city in Ukraine's east have been demonstrating in favour of holding a referendum on secession. The rally in Donetsk comes less than a week after voters in Crimea approved a similar referendum and Russia formally annexed the territory. Picture: Sergei Grits

Crimean authorities founded their declaration of independence on a right to “self-determination”, says Garth Abraham.

On March 16, the people of the Crimean peninsula in Ukraine voted overwhelmingly to join the Russian Federation. The following day, Crimea declared its independence from Ukraine as the Republic of Crimea and the Autonomous City of Sevastopol.

On March 18, the territory formally joined the Russian Federation through a treaty of accession. Addressing the crowds gathered in Red Square, Russian President Vladimir Putin declared: “Crimea and Sevastopol are returning to… their home shore, to the home port, to Russia.”

These events are a consequence of three months of violent protests in Ukraine that have left more than 100 people dead.

The then pro-Moscow president, Viktor Yanukovych, precipitated the crisis when, on November 21, he abandoned a deal that aimed at greater integration of Ukraine into the EU in favour of closer ties with Russia. Pro-European, western Ukraine rose in rebellion. Yanukovych fled Kiev on February 22.

The Russian majority in the Autonomous Republic of the Crimea and the administrative district of Sevastopol were vehemently opposed to the battles being waged in Kiev; their sympathies lay with Yanukovych – his removal was interpreted as an illegitimate coup.

Late in February, pro-Russian militia seized control of key buildings in Crimea. With the support of Sevastopol, on March 6, 78 of the 100 deputies in the Crimean Parliament declared their independence from Ukraine and their intention to join Russia. The declaration referred to the right of the people of Crimea to “self-determination”.

The March 16 referendum saw 97 percent of those voting endorsing the declaration of their deputies.

The accession of Crimea to the Russian Federation has provoked widespread condemnation in the West. US Vice-President Joe Biden has characterised the move as “nothing more than a land grab”; David Cameron and Angela Merkel have also cried foul.

The condemnation appears principally to be premised on the assertion that the accession is contrary to international law.

Because of its strategic position on the northern shores of the Black Sea – looking south, east and west – the Crimean peninsula has been of interest to the powerful for centuries – the Greeks, Romans, Turks, Goths, Genoese and Khazars have all left their mark.

In 1443, the Tatar Khanate – descendants of Genghis Khan – settled in, and then dominated the peninsula until 1783, when the territory was annexed to the Russian Empire of Catherine the Great.

For the next 170 years, Crimea was Russian. Not contemplating the future disintegration of the USSR, in 1954 Soviet leader Nikita Khruschev transferred Crimea to one of its member states, the Ukrainian Soviet Socialist Republic. When the USSR did disintegrate in 1991, Crimea became part of an independent Ukraine.

To complicate matters, Sevastopol – the largest city and seaport on the peninsula – was home to the Russian Black Sea Fleet. Necessarily therefore, Russia negotiated a lease of the port from the new Ukraine until 2017 – in 2010, Yanukovych extended the lease for a further 25 years in return for discounted Russian gas.

Thus, Russia’s historical links with Crimea are strong – arguably, stronger than those of Ukraine. Further, the bulk of Crimea’s population is now Russian, Ukrainians only constituting about 25 percent of the total.

Both groups, however, are interlopers; the indigenes are the Crimean Tatars of old.

Following World War II, during which Crimea was briefly occupied by the Nazis, Stalin wrongfully accused the Tatars of collaboration and deported them en masse to central Asia and Siberia. During the course of their exile, almost half perished. While about a quarter of a million Tatars have returned to Crimea, their position is precarious – characterised by high unemployment and poor living conditions. Today, the Tatars account for about 12 percent of the population.

Many Tatars chose consciously to boycott the March 16 referendum.

In holding the referendum and requesting accession to Russia, the Crimean authorities were clearly in violation of Ukrainian constitutional law.

The 1996 constitution recognises the autonomy of Crimea and Sevastopol, but specifically requires that all Crimean legislation accord with that of Ukraine as a whole.

A breach of constitutional law, however, is an internal matter; a breach of international law has wider implications. The Crimean authorities founded their declaration of independence on a right to “self-determination”.

The concept of “self-determination” in international law is of relatively recent vintage – historically, it was a political issue, not a legal one.

Since 1945, however, “self-determination” has gained legal currency. Although not defined, the concept is enshrined in the Charter of the UN and is explicitly endorsed in UN Resolution 1514 of 1960: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

A “right to self-determination”, however, has traditionally been narrowly construed. International law endorses the right when people are fighting “against colonial domination and alien occupation and against racist regimes”. In such circumstances, all the peoples of a defined territory exercise the “right”.

Outside of these circumstances, where it is only a portion of people within a particular territory that are claiming the right, the potential consequence is secession: the withdrawal of those exercising their right from the sovereignty of the territory and the creation of a new legal entity.

Traditionally, international law is wary of secession; it is only tolerated in extraordinary circumstances where the seceding group is subject to “extreme and unremitting persecution”. Ordinarily, therefore, the “right to self-determination” is generally trumped by the concepts of national unity and territorial integrity – cornerstones of the charter system.

Secession, nevertheless, occurs.

International law deals with secession through the doctrine of “recognition”. If the seceded entity is granted recognition by another state, the recognising state is according to that entity, vis-à-vis itself, all the rights and privileges – with their associated obligations – of statehood. If recognition is withheld, the seceded entity will continue to be treated as though it were still part of the state from which it purported to secede.

While the granting of recognition should be based on a factual assessment of whether the seceded entity actually meets the requirement of statehood, in practice, states accord or withhold recognition based on self-interested ideological commitments and prevailing political alliances.

One of the consequences of the disintegration of the Soviet Union has been the secession of a number of Russian enclaves in previous member states. Following armed conflict, and with Russian support, South Ossetia and Abkhazia seceded from Georgia in 2008. These secessions are recognised by five states, including Russia.

The declaration of independence by the Russian population of Transdniestria from Moldova has not been recognised by any state, including Russia.

Other purported secessions that have not been recognised by any state include that of Somaliland from Somalia in 1991 and Nagorno-Karabakh from Azerbaijan, also in 1991.

In their declaration of independence, the deputies of Crimea – presumably in an attempt to lend legal weight to their cause – specifically cited the 2010 decision of the International Court of Justice that held that there was no prohibition against Kosovo’s “declaration of independence” from Serbia in February 2008.

Kosovo’s secession is recognised by 108 member states of the UN. It has been granted membership of the World Bank and the International Monetary Fund.

Kosovo has not been recognised by Russia or Serbia. Such a move, argued the Russian ambassador to the court, would undermine international law – besides, he held, the people of Kosovo do not enjoy a “right to self-determination”.

Seceded entities that are only recognised by a limited number of states exist in a legal limbo; they are states for some and not for others. Ideally, such entities would want to be admitted as members of the UN – the most complete expression of recognition. Admission, however, is subject to the power politics of the security council veto. Crimea’s declaration of independent statehood lasted for a day. Russia alone accorded recognition. The following day, Crimea was annexed by Russia.

While the vast majority of states do not recognise Crimea’s accession to Russia, in the circumstances, recognition is of limited relevance: the seceded entity is no longer claiming sovereignty for itself. Rather, there has simply been a transfer of sovereignty from Ukraine to Russia.

There is very little that international law can now do.

The matter was referred to the security council, where a majority of 13 states condemned the move.

China, because of its own restive provinces of Tibet and Xinjiang, abstained; Russia exercised its veto.

The security council failed to pass a resolution.

While Russia proceeds to integrate Crimea into its state infrastructure, the majority of states will continue to consider Crimea to be part of Ukraine. In practice, however, Russia will be in control.

In their exchange during the crisis, US President Barack Obama questioned Putin’s appreciation of the legal niceties; perhaps correctly.

For Putin, international law – coloured as it is by political considerations – is of limited relevance. The issue for Russia is geopolitical: in the face of potential Nato expansion to Ukraine, Russia’s security interests must be paramount.

* Garth Abraham is an academic in the Wits Law School and an independent consultant specialising in public international law issues.

** The views expressed ehere are not necessarily those of Independent Newspapers.

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