Crimea’s Self-Determination in the Light of

Contemporary International Law

Anatoly Kapustin*

Abstract 101
I. The Right of Peoples to Self-Determination in Modern International Law 101
1. The Principle of Equal Rights and Self-Determination of Peoples 101
2. The Right of Peoples to Self-Determination 103
3. Some Reflections on the Concept of “Remedial Secession” 106
II. Brief Historical Sketch of the Development of Statehood of Crimea 109
III. Self-Determination of Crimea in the Light of Contemporary International Law 112

Abstract

The article discusses the notion of both the principle of self-

determination of peoples and the right of peoples to self-determination. It
deals with the most complex issues of the right to self-determination, such
as the concept of “the people”, the legitimacy of secession as a form of self-
determination and the concept of “remedial secession”. A brief historical
sketch of the development of statehood of Crimea is considered. The article
then discusses the legal basis for a right to external self-determination by the
people of Crimea and the subsequent unification with Russia.

I. The Right of Peoples to Self-Determination in Modern

International Law

1. The Principle of Equal Rights and Self-Determination of

Peoples

The principle of self-determination of peoples was developed in modern

international law, as evidenced by the provisions of Art. 1 para. 2 of the
Charter of the United Nations (UN Charter), which recognizes that friend-
ly relations between nations will develop on the basis of respect for the

* The author holds the office of the first deputy Director at the Institute on Legislation
and Comparative Law under the Government of the Russian Federation (Moscow, Russia).

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principle of legal equality and self-determination of peoples. The legal con-

tent and the status of this principle in international law was expressed in the
Declaration on Principles of International Law concerning Friendly Rela-
tions and Co-operation among States in accordance with the UN Charter of
1970 (the Friendly Relations Declaration 1970),1 as well as in the Declara-
tion of Principles of the Helsinki Final Act of the Conference on Security
and Co-operation in Europe of 1975 (the Helsinki Final Act 1975).
As stated in the Friendly Relations Declaration 1970, all peoples have the
right to determine freely, without external interference, their political status
and to pursue their economic, social and cultural development, and every
State has the duty to respect this right in accordance with the provisions of
the UN Charter. It follows that the main objective of this principle is the
proclamation and recognition of equal rights and of the right to self-
determination of peoples. The Friendly Relations Declaration 1970 states
that
“every State has the duty to promote, through joint and separate action, reali-
zation of the principle of equal rights and self-determination of peoples, in ac-
cordance with the provisions of the UN Charter, and to render assistance to the
United Nations in carrying out the responsibilities entrusted to it by the Charter
regarding the implementation of the principle, in order […] to promote friendly
relations and cooperation among States; […] bearing in mind that subjection of
peoples to alien subjugation, domination and exploitation constitutes a violation
of the principle, as well as a denial of fundamental human rights, and is contrary
to the Charter.”2

The final part of the Friendly Relations Declaration 1970 states the inter-
national legal status of the principles contained in it. In particular, it points
out that the principles of the UN Charter, as embodied in this Declaration,
constitute basic principles of international law, and therefore all states are
encouraged to apply these principles in their international activities and de-
velop their mutual relations on the basis of strict observance of these princi-
ples.
The legal content of this principle is reflected in the rights of peoples to
self-determination and the corresponding obligations of States, which are
the main subjects of international law. This is its peculiarity: While all other
fundamental principles of international law set out the rights and obliga-
tions of states, the principle of self-determination of peoples proclaims not

1 UN General Assembly Resolution 2625 (XXV), 24.10.1970.

2 UN General Assembly Resolution 2625 (XXV).

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only rights and obligations of states but also rights of non-state actors –
namely of the peoples.3

2. The Right of Peoples to Self-Determination

The fundamental principle of equal rights and self-determination of peo-

ples acknowledges a right to self-determination which was first declared in
the Declaration on the Granting of Independence to Colonial Countries
and Peoples of 1960 (The Colonial Independence Declaration 1960).4 The
Declaration stated that all peoples have the right to self-determination; by
virtue of that right they are entitled to freely determine their political status
and freely pursue their economic, social and cultural development.
Although the text of the Colonial Independence Declaration 1960 dealt
with the rights of “all peoples”, its adoption was the result of the decoloni-
zation process, which is reflected in the title and content of the document.
In this regard, international law doctrine formed the view that the right to
self-determination particularly addresses “colonial peoples” while other
peoples, not being under colonial rule and residing in the territory of al-
ready formed states, have already realized their right to self-determination.5
However, today this position has been superseded and the discussion on
whether this right applies to peoples living within existing states seems su-
perfluous.6
Later, the right of peoples to self-determination was stated in a number of
different international legal instruments: treaties, declarations etc.7 Art. 1

3 Thus, G. Seidel, A New Dimension of the Right of Self-Determination in Kosovo?, in:

C. Tomuschat, Kosovo and the International Community. A Legal Assessment, 2002, 203 et
seq. writes: “whereas all other fundamental principles of public international law aim to pro-
tect status quo, the principle of self-determination safeguards the dynamic development of
international relations and thus makes a peaceful change to the status quo – under certain ex-
ceptional conditions – possible”.
4 UN General Assembly Resolution 1514 (XV).
5 Peoples fighting against foreign occupation (those considered the Arab people of Pales-
tine) or the peoples fighting against racist regimes (the people of South Africa in 1948-1994)
were equated with oppressed peoples in the exercise of their right to self-determination,
which was recognized in Art. 1 para. 4 of the Additional Protocol I to the Geneva Conven-
tions of 12.8.1949, and relating to the Protection of Victims of International Armed Conflicts
1977.
6 G. Seidel (note 3), margin number 204. At the same time J. O’Brien, International Law,
2001, 165 et seq., expresses the opinion that “the principle of self-determination is fraught
with difficulty when any attempt is made to extend it beyond the narrow colonial context”.
7 Charter of Paris for a New Europe 1990 (Paris Charter 1990); Art. 20 of the African
(Banjul) Charter on Human and Peoples’ Rights 1981; the Vienna Declaration and Pro-

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para. 1 of the International Covenant on Economic, Social and Cultural

Rights and the identical wording of Art. 1 para. 1 of the International Cov-
enant on Civil and Political Rights 1966 (Human Rights Covenants 1966)
provide that all peoples have the right to self-determination. Unlike the
Friendly Relations Declaration 1970, there were no indications on the rela-
tionship between the principle of self-determination and the right of peo-
ples to self-determination. In these documents the right to self-
determination was proclaimed as a right which has to be recognized by all
participant States.
The practice of the International Court of Justice (ICJ) has recognized
the right to self-determination of peoples as valid under international law8.
National courts have also recognized its existence (judgment of the Supreme
Court of Canada in 1998 concerning the secession of Quebec)9.
In the final analysis, we may conclude that the principle of self-
determination of peoples has developed into a generally accepted norm of
international law, which has the character of a customary norm of interna-
tional law. This fundamental principle of international law provides univer-
sally recognized rights of peoples to self-determination, giving the people
the right to freely determine, without external interference, their destiny,
including the right to secede from the state.
The most controversial theoretical issues in this field of international law
is the definition of the subject (the beneficiary) of the right to self-
determination and the legal justification of the right to secession as one of
the forms of self-determination. As for the subject of this right, the main
difficulty is that there are neither international legal acts nor is there evi-
dence in international judicial practice of any satisfactory criteria for the
notion of “people”.10 This lack often leads to controversies regarding specif-
ic situations of self-determination.

gramme of Action of the World Conference on Human Rights 1993; Art. 2 para. 1 of the Ar-
ab Charter on Human Rights 2004; Art. 3 of the Declaration on the Rights of Indigenous
Peoples 2007 recognized the right of indigenous peoples to self-determination.
8 South West Africa Case, ICJ Reports 1950; South West Africa Case, ICJ Reports 1971;
Western Sahara Case, ICJ Reports 1975; East Timor Case, ICJ Reports 1995; Construction of
a Wall Case, ICJ Reports 2004; Kosovo Case, ICJ Reports 2010, etc.
9 Reference re Secession of Quebec, 161, DLR, 4th Series (1998).
10 UN Charter, Colonial Independence Declaration 1960, the Friendly Relations Declara-
tion 1970 and other international legal documents using the term “people” do not contain any
legal criteria for determining it. The same can be said about the decisions and conclusions of
the ICJ that concern various aspects of the peoples of the mandated territories (South-West
Africa Case), colonial territories (Western Sahara Case) or other peoples (Kosovo Case), etc.
The ICJ refers to the concept of the “people” but does not describe its legal content. Attempts
to define the term “people” that are found in documents of international organizations (for

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At the same time, international legal scholarship recognizes that the right
to self-determination is of a collective nature, so that “only groups that
qualify as such, can access the right”.11 However, in the broadest sense of
the word peoples are considered as “large, anonymous human groups pos-
sessing certain national characteristics”.12 Links to national traits bring the
concept of the “people” close to the concept of the “nation”, allowing some
scholars to argue that a people, like the nation, is characterized by the fol-
lowing: accommodation in a common area, economic integrity of the popu-
lation and related social integrity, the presence of certain elements of a
common culture and an awareness of this fact. Additional factors that stim-
ulate integrity may be racial or linguistic proximity, common religion, etc.13
A no less complex international legal issue is the question of whether the
right to self-determination also constitutes a right to secession. On the one
hand, the Friendly Relations Declaration of 197014 and a number of other
documents15 considered it a legitimate means of exercising the right to self-
determination, if a people succeeds in separating a part of the state’s territo-
ry.
On the other hand, international practice knows many examples of peo-
ples having a recognized right to self-determination, which are nevertheless
unable to exercise this right through secession for quite a long time. This is
because the state, in whose territory the people resides, impedes the at-
tempts for secession, for example, by preventing the holding of a referen-
dum to determine the will of the people.
In international legal scholarship, there is a debate about the legitimacy
and legality of the right of secession. Some authors recognize the right to

example, in a special report, made within the framework of UNESCO, UN Doc. SHS-
89/CONF. 602/7, Paris, 22.2.1990.) also do not have a legal character. Furthermore, according
to Professor S. Chernichenko, Theory of International Law, Vol. II – Old and New Theoreti-
cal Problems, 1999, 174 et seq.: “notions such as ‘people’ and ‘nation’ do not have and cannot
have a clear legal content”.
11 J. Summers, Peoples and International Law, 2014, 7 et seq.
12 J. Summers (note 11), margin number 6. However, some lawyers recognize the presence
of only three human communities in international law, distinguishing by whether they have
the appropriate rights: peoples, minorities and indigenous populations. M. G. Kohen, Intro-
duction, in: M. G. Kohen, Secession – International Law Perspectives, 2006, 9 et seq.
13 S. Chernichenko (note 10), margin number 177.
14 The Declaration specifically states that “The establishment of a sovereign and inde-
pendent State, the free association or integration with an independent State […] constitute
modes of implementing the right of self-determination of that people.” (note 1).
15 See the Helsinki Final Act 1975 and the Vienna Declaration and Program of Action of
the World Conference on Human Rights 1993.

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secede for the peoples of both federal and unitary States,16 while others be-
lieve that the right to secession is not generally recognized by international
law and is permitted only in exceptional cases, for example, when the exist-
ence of the people within a state is in danger.
Therefore, the right to secession is at least not completely excluded from
international law and may, under certain conditions, be used by the people
to implement their right to self-determination. In addition, some lawyers,
anticipating the dire consequences of the “political divorce” between the
people and the state, call for caution and discretion, noting that “secession
qualifies as a complex process, the pros and cons of which must be carefully
weighed before a definitive judgment can be given”.17 This caution seems
quite reasonable, since the absence of clear rules in international law and
established procedures for secession should be accompanied by a careful
study of all the relevant circumstances.
The right of secession is based on the will of the self-determining people.
This idea was formulated much earlier by J. Locke, according to whom the
will of the people is the source of legitimacy for the government to adminis-
ter the territory.18 His theory was used during the War of Independence of
the United States and the French Revolution and was further developed in
international law. It must be admitted that its evolution has been controver-
sial, especially for the peoples of the colonies. European metropolises have
denied them the right to self-determination, which is clearly contrary to the
idea of equality of peoples.
In contemporary international law the idea of J. Locke on the free will of
the people as the legal basis of the right to self-determination of people is
supported by the ICJ, which expressed the view that the application of the
right to self-determination requires a free and genuine expression of the will
of the people concerned.19

3. Some Reflections on the Concept of “Remedial Secession”

Without prejudice to the radical approach to the right to self-deter-

mination, allowing its implementation by all peoples, including ethnic

16 See Y. Dinstein, Is there a Right to Secede?, in: ASIL Proceedings, 1996, 299 et seq. : “…
a people unhappy about its political status within the bounds of an existing State –federal as
much as unitary – is entitled to secede and create a new State.”
17 C. Tomuschat, Secession and Self-Determination, in: M. G. Kohen, Secession (note 12),
26 et seq.
18 J. O’Brien (note 6), 162 et seq.
19 Western Sahara Case (note 8), para. 55.

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groups, we consider a more cautious approach, which allows secession of a

territory in exercising the right to self-determination of one of the peoples
inhabiting it only in exceptional circumstances. This position is known to
be associated with the concept of “remedial secession” proposed for the
purpose of legitimizing secession. The concept of “remedial secession” was
referred to by the ICJ in the Kosovo Case. However, the Court “considers
that it is not necessary to resolve these questions in the present case”.20
Nonetheless in the academic literature, this concept is widely commented
upon. Moreover, the recognition by a large number of states of Kosovo’s
independence from Serbia, appeared to be a clear violation of the territorial
integrity of the Republic of Serbia. Furthermore, Kosovo is not the only
example in the history of contemporary international relations, before the
situation in Crimea, where the right to self-determination through secession
was exercised by a people that was not under colonial rule.21
The question raised in this regard, in particular by C. Tomuschat, is far
from merely rhetorical. He asks: “Can the lessons that have been learned
from Kosovo be generalized, or will Kosovo remain a unique rocher de
bronze, with no real chance of being emulated in the near future?”22 We
should acknowledge that any example is contagious.23 The separation of
Abkhazia and South Ossetia from Georgia in 2008 and now the Crimean
case of 2014 provide obvious evidence that haste in applying theoretical
concepts can cause a chain reaction, which today may be considered as
emerging international practice.
The concept of “remedial secession” is based on the so-called “safeguard
clause” contained in para. 7 (“The principle of equality and self-deter-
mination of peoples”) of the Friendly Relations Declaration 1970. It pro-
vides that
“none of the above provisions shall be construed as authorizing or encourag-
ing any action which would dismember or impair, totally or in part the territorial
integrity or political unity of sovereign and independent states conducting them-
selves in compliance with the principle of equal rights and self-determination of
peoples, as described in this section of the Declaration, and thus possessed of a

20 See Kosovo Case (note 8), para. 82, 83.

21 See Bangladesh in 1971, Eritrea in 1993, South Sudan in 2011.
22 C. Tomuschat (note 17), 38.
23 However, in regard to the Kosovo Case it is contested whether it has any precedential
value under international law. See S. Oeter’s contribution to this volume. See also A. Peters,
Has the Advisory Opinion’s Finding that Kosovo’s Declaration of Independence Was not
Contrary to International Law Set an Unfortunate Precedent?, in: M. Milanovic/M. Wood
(eds.), The Law and Politics of the Kosovo Advisory Opinion, 2015, 291 et seq.

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government representing the whole people belonging to the territory without

distinction as to race, creed or color”.

A truncated form of this provision is set out in the Paris Charter of 1990,
in which the State parties reaffirmed “the equal rights of peoples and their
right to self-determination in conformity with the Charter of the United
Nations and with the relevant norms of international law, including those
relating to territorial integrity of States”.24
The analysis of this situation causes mixed feelings because it is not clear
to whom the principle is actually addressed. Who shall have the right to in-
terpret the basic elements of the right to self-determination and what is the
procedure of its implementation? As set out in the Friendly Relations Dec-
laration 1970, interpreters could either be the States to whom a number of
the provisions of this Declaration are addressed, they could be the nations
that wish to exercise their right to self-determination in the form of seces-
sion or they could be any international bodies (e.g. the courts) or interna-
tional intergovernmental organizations in the framework of their compe-
tencies.
Given the lack of relevant practice, it is logical to assume that this re-
quirement of the Friendly Relations Declaration 1970 will be extended to all
subjects of international law, which are involved in varying degrees, in the
settlement of the situation, but with certain reservations.
Another criterion of the ban on promoting or authorizing actions leading
to the violation of the territorial integrity of states is the condition that such
states are in compliance with the principle of equal rights and self-
determination of peoples as set out in this section of the Friendly Relations
Declaration 1970, and thus possess a government that represents the whole
people belonging to the territory without distinction as to race, creed or
colour. In the Vienna Declaration of the World Conference on Human
Rights 1993, with reference to the Friendly Relations Declaration 1970, it
was established that states shall comply with the principle of equal rights
and self-determination of peoples and thus have a government that repre-
sents the interests of all the people in their territory without distinction of
any kind. The phrase “without distinction of any kind” was decisive for the
prohibition of discrimination of groups not belonging to the dominant eth-
nic group.25

24 Charter of Paris for a New Europe 1990.

25 UN World Conference on Human Rights, Vienna Declaration and Programme of Ac-
tion, ILM 32 (1993), 1663 et seq.

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II. Brief Historical Sketch of the Development of

Statehood of Crimea

The historical record of the Crimean peninsula dates from 1200 B.C.,
when it was inhabited by the Tauri, who were connected with the other
Black Sea nations. From 800-400 B.C., Greek colonies were established on
Crimea which became part of the ancient world. Then the Scythians migrat-
ed to Crimea and transferred the centre of their kingdom there. From 63
B.C. to 257, Crimea was under the control of the Roman Empire. Then
there were conquests of Crimea by the Goths, the invasion of the Huns,
and after that the rule of the Byzantine Empire. In 1239 Crimea was con-
quered by the Mongols and became part of the Golden Horde. In 1475, the
Ottoman Empire conquered the peninsula and the Crimean Khanate, creat-
ed decades earlier, fell under vassalage to the Ottoman Empire.
The Crimea became a part of Russia in April 1783 by the Manifesto of
the Empress Catherine II, and a year later the Tavricheskaya region (oblast)
was created on its territory. In 1802, Crimea was transformed into a prov-
ince (gubernia).
After the collapse of the Russian Empire during the Civil War (1917-
1923), the territory of Crimea was declared an integral part of Russia by all
successive governments. The Crimean Autonomous Soviet Socialist Repub-
lic (CASSR) as part of the Russian Soviet Federal Socialist Republic
(RSFSR) was formed on 18.10.1921. At the conclusion of the Treaty estab-
lishing the Union of Soviet Socialist Republics (USSR) on 30.12.1922, the
CASSR became part of the Russian Federation and was transformed into
the Crimean region (oblast) in 1945.
In 1954, the Crimean region was transferred from the RSFSR to the
Ukrainian Soviet Socialist Republic (Ukrainian SSR). This transfer of terri-
tory was a purely domestic administrative matter. Within the Soviet Union
republics did not have an independent territory, but were considered as
parts of the same territory of the Federation, under the territorial suprema-
cy of the Soviet Union. Therefore, the transfer of Crimea to Ukraine did
not take into account the will of the population living there, especially since
no referendum was held on the issue. In addition, according to Russian
scholars, the instruments of transfer of the Crimean region from RSFSR to
Ukraine were undertaken by public authorities of the RSFSR who were not
competent to decide such questions. In other words, they were in violation

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of applicable constitutional law of the RSFSR26. Accordingly, these instru-

ments did not have legal force from the moment of their adoption.27
The allegation that the republics of the USSR were the subjects of inter-
national law is untenable. Their international personality was dependent on
that of the USSR and was of very limited nature. In any case, the boundaries
between the subjects of the Soviet federation were purely administrative and
did not have any international legal significance.
On 20.1.1991, in the context of a deep political crisis in the Soviet state
system, a referendum was held in Crimea. Of the total number of the par-
ticipants, 93.26 % voted in favour of the restoration of the CASSR as a sub-
ject of the USSR, i.e., they favoured independence from Ukraine and the
formation of an independent state subject to the Soviet federation along
with Ukraine and the RSFSR.28 This solution was recognized by the USSR
and Ukraine, but has not been implemented due to the collapse of the
USSR.29
On 5.5.1992, the Supreme Council of Crimea adopted the act on state in-
dependence of the Republic of Crimea, which was supposed to take effect
after confirmation by the Crimean referendum scheduled for 2.8.1992. On 6
May of the same year the Constitution of Crimea was adopted.30 However,
on 13.5.1992, the Supreme Council of Ukraine found the proclamation of
the act of state independence and on the referendum to be unconstitutional,

26 The decision was adopted by the Presidium of Supreme Council of the RSFSR Febru-
ary 19. This republican body had no power to decide territorial questions (Art. 33 of the Con-
stitution of the RSFSR). Art. 16 of the Constitution of the RSFSR provided that the territory
of RSFSR may not be changed without the consent of the RSFSR. According to the Russian
scholar A. V. Fedorov, Legal Status of Crimea. The Legal Status of Sevastopol, 1999, 11 et seq.,
no government authorities of the RSFSR were granted the right to change the territory of the
RSFSR or to give consent to its change. For comparison, Art. 15 of the Constitution of the
Ukrainian SSR stipulated that the territory of the Ukrainian Soviet Socialist Republic may not
be changed without the consent of the Union of Soviet Socialist Republic.
27 A. V. Fedorov (note 26), margin number 11.
28 V. G. Vishnyakov, Crimea: Law and Policy, 2011,132 et seq.
29 The USSR law “On the procedure for addressing issues related to the secession of Un-
ion republics from the USSR” of 3.4.1990 in Art. 3 provided that in the federal republic, com-
posed of the autonomous republics and other autonomous communities, the referendum shall
be held separately. The peoples of the autonomous republics were granted the right to an in-
dependent decision whether to stay in the Soviet Union or the federal republic, as well as to
raise the question about their state-legal status. Accordingly, the Crimean referendum of 1991
was legitimate, and its implementation should be carried out in future by the state bodies of
the Ukrainian SSR and the USSR. The Supreme Council of Ukraine has distorted the will of
the Crimean people and only partially implemented its results in terms of changing the name
of this territory, adopting the law on the rehabilitation of the Crimean Autonomous Republic
within Ukraine in February 1991.
30 A. V. Fedorov (note 26), 17.

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suspended the Supreme Council of Crimea’s actions and dissolved the Cri-
mean Parliament.31 On 9.7.1992, the Supreme Council of Crimea declared a
moratorium regarding the decree on the referendum.32 In other words, the
referendum failed and the will of the people of Crimea could not be deter-
mined. This suggests that the people of Crimea was clearly refused its right
to external self-determination.
Further strengthening of the Crimean statehood was interrupted by the
actions of the Government of Ukraine. In 1995, Crimean authorities adopt-
ed the Constitution of Crimea, which significantly reduced the competences
of the state and municipal authorities of the Republic of Crimea.33 The con-
stitution that was eventually adopted on 21.10.1998 further maintained this
trend.34
It should be noted that the unilateral determination of the legal status of
Crimea by the government of Ukraine brought significant restrictions on
the rights of the people. In particular, in 1992, the inhabitants of Crimea
were declared citizens of Ukraine without their consent.35 Moreover, the
Crimean Republic was denied the right to land and natural resources, and
the official status of the Crimean Tatar and Russian languages was abolished
in favour of a single national language – Ukrainian.
The unconstitutional coup that took place in Ukraine on 22.2.2014
caused protests by the population of Crimea. Accordingly, the executive
bodies of the Autonomous Republic of Crimea refused to recognize the le-
gitimacy of the new Ukrainian government.
On 16.3.2014 a referendum on the status of Crimea was held. According
to official figures 83.1 % of the voters of Crimea took part in the referen-
dum, 96.77 % of whom voted in favour of the reunification of Crimea with
Russia as a subject of the Russian Federation.36 Based on these results, Cri-
mea was declared a sovereign Republic on 17.3.2014, which included Sevas-
topol as a city with a special status. On 18.3.2014, a Treaty was signed be-
tween the Russian Federation and the Republic of Crimea on the accession
of the Republic of Crimea to Russia, according to which two new entities
within the Russian Federation were formed – the Republic of Crimea and
the federal city of Sevastopol. The federal law on the accession of Crimea to

31 V. G. Vishnyakov (note 28), 164 et seq.

32 A. V. Fedorov (note 26), 17.
33 A. V. Fedorov (note 26), 21.
34 A. V. Fedorov (note 26), 25.
35 This did not constitute a violation of international law, because international customary
law does not grant a right of option to the inhabitants of a territory in the case of state succes-
sion.
36 Rossiyskaya gazeta, No. 6333 (61), 18.3.2014.

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Russia was signed on 21.3.2014 and was ratified together with the accession
treaty.
From the above, we may draw the following conclusions. From the 18th
century to the beginning of the 1990s, Crimea was part of the Russian Em-
pire and then of the USSR. In 1991, with the collapse of the USSR, Crimea
remained part of Ukraine, but during 1991-1992 public authorities and the
population of Crimea repeatedly expressed a desire to exercise its right to
self-determination first in the USSR, but as an independent subject of the
federation along with Ukraine and Russia, and then as an independent state.
Ukraine, after first recognizing the Crimea Autonomous Republic then uni-
laterally interrupted the formation of an independent statehood of Crimea
without accepting the will of its people regarding the inclusion of Crimea in
the structure of the Ukrainian state.
The referendum in Crimea on 16.3.2014 was the confirmation of a previ-
ously manifested will of the people of Crimea to restore its statehood and
demonstrates the consistency in the people’s defence of its right to self-
determination.37

III. Self-Determination of Crimea in the Light of

Contemporary International Law

The problem of Crimea in contemporary international relations since the

collapse of the USSR had not been subject to any significant attention.
However, after the unconstitutional coup in Ukraine on 22.2.2014 and the
decisions of the state bodies of Crimea to hold a referendum on independ-
ence, it became one of the most widely discussed topics in world politics at
the United Nations (UN), the Organization for Security and Co-operation
in Europe (OSCE) and the European international organizations (Council
of Europe, European Union). Discussions in the UN Security Council, the
UN General Assembly and the European organizations were politicized
and often of a very emotional nature.
The analysis of the problem of self-determination of the people of Cri-
mea should be carried out based on the rules of general international law,
taking into account the internal legislation of Ukraine and Crimea. It should
be borne in mind that, at the moment, Crimea is part of the territory of the

37 See for a discussion to which extent the referendum satisfied international standards: A.
Peters, The Crimean Vote of March 2014 as an Abuse of the Institution of the Territorial Ref-
erendum, in: C. Calliess (ed.), Staat und Mensch im Kontext des Völker- und Europarechts:
Liber Amicorum für Torsten Stein, 2015, 255 et seq.

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Russian Federation, as is evident from the relevant international legal in-

struments and the domestic Russian legal acts.
The treaty between Russia and the Republic of Crimea “On the accession
of the Autonomous Republic of Crimea and the creation as new subjects of
the Russian Federation”38 forms the international legal foundation for the
unification of Crimea and Russia (on the premise that it can be considered a
valid treaty concluded between two international legal subjects under inter-
national law). First of all, the Parties in deciding about the reunification,
recalled the historic community of their people and took into account the
existing connections between them. Therefore, the public in Russia and
Crimea perceives this act as a symbol of the restoration of historical justice
and the realization of a historical title to reunite the people of Crimea with
their historical homeland – Russia. In his address on the occasion of the de-
cision to approve the Treaty on the accession of new subjects to the Russian
Federation, Russian President V. Putin pointed out the historical communi-
ty of the peoples of Crimea and Russia.39
As is known, in its Opinion on the unilateral declaration of independence
of Kosovo, the ICJ did not consider the question of the historical signifi-
cance for Serbia of the formation of statehood of Kosovo. Generally, a ref-
erence to the historical basis is extremely rare in international law. It is ac-
cepted, for example, in the justification of historical rights to some coastal
marine areas (historic bays, and others) or with regard to the validity of a
right of transit passage through the territory of another state. However, it
also cannot be ignored when it comes to reuniting historically united na-
tions. The division of Russia and Crimea was largely artificial and in the
process of the disintegration of the USSR a satisfactory legal settlement of
territorial issues was, for historical reasons, not implemented. Subsequently
the conclusion of bilateral agreements between the Russian Federation and
Ukraine, as well as documents of the Commonwealth of Independent States
(CIS) (although de-jure Ukraine is a founder, but not a member of the CIS)
stated only the status quo and did not address the question of the legal sta-
tus of some of the disputed territories, which means that there are still some
unresolved territorial disputes and conflicts on the territory of CIS member
states.

38 The Treaty between the Russian Federation and the Republic of Crimea on the acces-
sion the Republic of Crimea to the Russian Federation and the creation as new subjects in the
Russian Federation, in: Collection of Legislation, 2014, No. 14, Art. 1570.
39 V. Putin, Address by President of the Russian Federation, 18.3.2014, <[Link]
[Link]>.

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The main international legal basis for the conclusion of the Treaty on the
accession of Crimea to Russia lies in the principle of equal rights and self-
determination of peoples as enshrined in the UN Charter. As pointed out
above, all peoples have an inalienable right to freely and without external
interference determine their political status and to pursue their economic,
social and cultural development and every State has the duty to respect this
right. The right to self-determination of the people of Crimea has been real-
ized by the free and voluntary will of the people in the Crimean referendum
held in the Autonomous Republic of Crimea and Sevastopol on 16.3.2014.
In that referendum the people of Crimea decided to reunite with Russia as a
subject of the Russian Federation. Based on the results of the referendum
state bodies of the Republic of Crimea and the city with special status of
Sevastopol approached the Russian Federation with a proposal for acces-
sion. Russia accepted the offer.
In order to determine the validity of that expression of the will of people,
we point out the factors that determine its lawfulness. First of all, one
should pay attention to the fact that already under Ukrainian constitutional
law, Crimea was assigned a special status as an autonomous republic. This
autonomy was not a “gift from above” (the government or the Parliament
of Ukraine), but rather the contrary. It was the result of a long and con-
sistent struggle of the people of Crimea for the right to develop freely their
political, economic, social and cultural institutions.
We have already noted that since 1991, the Crimean people repeatedly
demonstrated the will to create first an independent entity within the Soviet
Union, and then to realize national independence within the framework of
Ukraine. Consent to be a part of Ukraine was expressed freely in the Con-
stitution of Crimea in 1992, but it was accompanied by the proclamation of
its supremacy in relation to natural resources, material, cultural and spiritual
values and the exercise of sovereign rights within the whole territory of the
Crimean Republic. It was also established that the Republic of Crimea in
the face of its public bodies and officials shall have in its territory all pow-
ers, except those which the Republic voluntarily delegates to Ukraine and
which are secured by the constitutional law of the Republic. Nevertheless,
the development of the Crimean State was forcibly terminated by the cen-
tral government of Ukraine, without any hint of a desire to take into ac-
count the will of the people of Crimea. The republic was deprived of all its
rights, except the right to be called an Autonomous Republic.
Ukraine did not allow the people of Crimea to freely determine its will
by means of internal democratic procedures (plebiscite, referendum, etc.).
This can be interpreted in the spirit of the Friendly Relations Declaration

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1970 as depriving a people of the right to internal self-determination, rather

than acting in a spirit of respect for that right and promoting and assisting in
its implementation. This illegal coercion prevented the free exercise of the
right to internal self-determination. However, this coercion brings into play
the right to external self-determination and freedom to choose the path of
its development, including the right to determine freely its historical destiny
in accordance with international law.
Moreover, there is no doubt that the people of Crimea may be considered
a people by the standards of international law. They have developed a polit-
ical-ethnic community, which is the bearer of the right to self-
determination. Earlier we referred to the wording that defines people as
large, anonymous group of people who have certain national characteristics.
This definition is quite applicable to the people of Crimea, which in its
composition is poly-ethnic. This feature was noted by the president of Rus-
sia in his address on 18 March:
“Crimea is a unique blend of different peoples’ cultures and traditions. This
makes it similar to Russia as a whole, where not a single ethnic group has been
lost over the centuries. Russians and Ukrainians, Crimean Tatars and people of
other ethnic groups have lived side by side in Crimea, retaining their own identi-
ty, traditions, languages and faith.”40

In the referendum on independence the people of Crimea – all ethnic

groups living in Crimea – showed themselves as one self-determined people
and overwhelmingly opted for a reunification with Russia.
Since the will of the people must form the core element in the formation
of the government, all references to the unconstitutionality of the referen-
dum cannot be accepted, especially since Ukraine’s government was over-
thrown by an unconstitutional coup.
The events in Crimea that led to the independence and accession to Rus-
sia may also be interpreted as case of “remedial secession”. As widely
acknowledged, the applicability of this concept largely depends on the con-
text and the special circumstances of the case. C. Tomuschat, analyzing dif-
ferent aspects of the concept of “remedial secession”, expresses the view
that
“remedial secession should be acknowledged as part and parcel of positive law,
notwithstanding the fact that its empirical basis is fairly thin, but not totally lack-
ing: as pointed out, the events leading to the establishment of Bangladesh and the
events giving rise to Kosovo as an autonomous entity under international admin-

40 V. Putin (note 39).

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istration can both be classified as coming within the purview of remedial seces-
sion”.41

In our opinion, the situation in spring of 2014 in Crimea, was character-

ized as follows:
There was an unconstitutional coup on 22.2.2014 that deprived the Cri-
mean people of the right to representation in the central government of
Ukraine. Radical nationalist elements came to power in Kiev; they openly
expressed threats against all those disagreeing with them, especially persons
acting for the preservation of the Russian language and culture in the terri-
tory in which they lived. The population of Crimea, as we know, did not
hide their cultural and linguistic affinity to Russia.
Along with official armed groups (army, police, etc.) “private” militias
(so-called “national guard”) were deployed in the country. The latter were
composed of extremist nationalists who began to carry out punishment
against disagreeable people, including violence. Formal power structures did
not prevent physical attacks (beatings, insults, humiliations of human digni-
ty, torture, etc.) by violent extremist nationalist-wing dissidents, including
attacks against candidates for presidency of Ukraine. The result was that a
number of candidates were forced to withdraw their candidacy.42
Moreover, a brutal massacre of dissidents in Odessa took place on
2.5.2014.43 This was a triumph of nationalist lawlessness. Dozens of people
were killed or burned alive simply because they wanted to speak Russian. In
view of this it can hardly be argued that the central government in Kiev ad-
heres to European democratic standards.
There is also information about Ukrainian but Russian speaking intellec-
tuals (journalists, teachers, etc.) who have “disappeared” and whose disap-
pearance has not been investigated and prosecuted by the authorities.44
Western and international human rights organizations began to give their

41 C. Tomuschat (note 17), 42.

42 E. Shestakov, Yanukovych Held in Europe – Around the Finger. Under pressure from
the West, Yanukovych has led the country to bloodshed and split it, Rossiyskaya Gazeta,
24.2.2014; Oleg Tsarev refused to participate in the elections of the President of Ukraine, in:
Rossiyskaya Gazeta, 29.4.2014.
43 Office of the United Nations High Commissioner for Human Rights, Report on the
Human Rights Situation in Ukraine, 15.6.2014, <[Link] paras. 37-50.
44 Office of the United Nations High Commissioner for Human Rights, Report on the
Human Rights Situation in Ukraine, 15.5.2014, <[Link] paras. 103, 104; UN
Human Rights Council, Report of the United Nations High Commissioner for Human
Rights on the Situation of Human Rights in Ukraine, A/HRC/27/75, September 2014, para.
23.

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 Crimea’s Self-Determination in the Light of Contemporary International Law 117

comments on events associated with the flagrant violations of human rights

in Ukraine just after the start of military operations in the Donbass.
The discussions in the United Nations, the OSCE, and European Institu-
tions on the “Crimean issue” are strongly one-sided. This confirms that the
people of Crimea had to rely on their own strength and that a remedy
through the international community was not to be expected. Rather, only
an appeal to neighbouring states, in this case Russia, for assistance in ensur-
ing the basic right to life and the right to freedom of expression, promised
to secure the right to self-determination of the Crimean people.
In the Crimean situation the physical existence of the people was at stake
and therefore a secession from Ukraine was justified under the requirements
of “remedial secession”. Of course, compared to Bangladesh, Kosovo and
other examples of this kind, the situation in Crimea was different. In fact
there were no mass killings of civilians or full-scale military actions, but this
was not to the merit of the Ukrainian government or the international
community.
In our view the situation in Crimea during this period was determined by
the fact that the political and legal situation prevailing after the unconstitu-
tional coup in Ukraine caused a real threat to the life, health and human
rights of the majority of the population of Crimea, which from the begin-
ning rejected unconstitutional methods of political struggle. Evidence of
this threat were political provocations, expressed in the killing of demon-
strators in Simferopol and other forms of violence and intimidation of polit-
ical activists in Crimea, attempts to physically eliminate the leaders of the
movement for self-determination, and the deployment of regular Ukrainian
armed troops in order to intimidate the protesting population, etc. Under
these circumstances, it was urgent to hold a referendum in order to prompt-
ly decide on the question whether the Crimean people wanted to remain
part of Ukraine or not. Doing so was logical, legitimate and justified from
the perspective of international law and international morality.
To wait, as in Rwanda and other “hot spots” of the world, and to act only
when the number of victims ran into hundreds of thousands, and sometimes
millions of tortured people and then strive to restore the trampled justice
through subsequent international criminal justice cannot be justified from
the standpoint of morality and humanity. The slogan “fiat justitia pereat
mundus” undoubtedly prevails when the threat to the lives of a vast number
of people becomes reality.
This analysis has shown that the current concept of the right of peoples
to self-determination forms a valid legal norm. In exceptional circumstanc-
es, the right to self-determination also opens the legal possibility of seces-

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sion. However, unfair treatment of a variety of nationalities still occurs and

to our deep regret, international law and the international community can-
not offer them satisfactory solutions to ensure their rights. This leads to the
perpetuation of ethno-national conflicts and threats to regional and world-
wide security. The current design of the right to self-determination and the
right to secession is not able to eliminate these threats. Further analysis and
development of proposals for the advancement of the relevant institutions
of the system of modern international law is mandatory.

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