Referendum in crimea: developing international law on 'territorial realignment' referendums.

Author:White, Thomas W., Jr.
 
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  1. INTRODUCTION II. THE CRISIS IN UKRAINE AND CRIMEA III. CONFLICTING PRINCIPLES OF SELF-DETERMINATION & TERRITORIAL INTEGRITY A. The Right of Self-Determination B. Territorial Integrity of States as a Limit on the Right of Self-Determination C. Balance Between Self-Determination & Territorial Integrity under International Conventions IV. SELF-DETERMINATION REFERENDUMS LEGITIMIZE TERRITORIAL CHANGES A. Procedural Requirements of Self-Determination Referendums B. Analysis of the Procedure of the Crimea Referendum V. POSSIBLE JUSTIFICATIONS FOR CRIMEA'S SECESSION FROM UKRAINE A. Constitutional Secession B. Remedial Secession C. State Disintegration VI. STABILITY REQUIRES RENEWED RESPECT FOR THE TERRITORIAL STATUS QUO A. Kosovo Advisory Opinion as legal support for Crimea B. Conclusion I. INTRODUCTION

    Is it in accordance with international law for a people to unilaterally "break away" territory from an existing, recognized State, and join the territory to that of a neighboring State, based solely upon a referendum where a majority of the territory's eligible voters cast a ballot in favor of the territorial change?

    The March 2014 referendum in Crimea raised this very issue. Reportedly more than 90% of voters who cast ballots favored breaking away from Ukraine and joining the Russian Federation. (1) The referendum has been widely criticized as an affront to Ukraine's territorial integrity and remains unrecognized as legally effective by the vast majority of the countries of the world. (2)

    This paper explores whether the 2014 Crimea referendum in favor of breaking away the territory of Crimea from Ukraine, and joining it with the Russian Federation: (a) meets the procedural requirements established under customary international law for recognition of self-determination referendums; and (b) whether Crimea's secession from Ukraine can be justified: (1) under the laws and national constitution of Ukraine; (2) as a form of remedial secession; or (3) due to the disintegration of the State of Ukraine.

    Crimea's referendum to leave Ukraine does not meet the procedural requirement of peacefulness due to the presence of Russian military forces and local self-defense squads arresting opponents of the referendum in the run-up to the vote. (3) The referendum to break away from Ukraine is neither constitutional, nor is there sufficient evidence of oppression of the Crimean people to support remedial secession. (4) However, continued conflict in Eastern Ukraine raises the question whether the Ukrainian state is disintegrating--a justification accepted in the past by the European Community to legitimize break-away republics in Yugoslavia. (5)

  2. THE CRISIS IN UKRAINE AND CRIMEA

    Crimea is a strategically-located peninsula on the Black Sea that has been part of Ukraine for decades and part of the Russian Empire for centuries before that. (6) Most of the State of Ukraine is divided into administrative districts called oblasts, but Crimea has special status as an "autonomous republic" within Ukraine, complete with its own local parliament and President. (7)

    Crimea has a population of over two million people and some two-thirds of the residents are ethnically Russian or Russian-speaking. (8) Since the dissolution of the U.S.S.R. in 1991, Russia has continued to station its Black Sea naval forces in Crimea under an agreement with Ukraine. (9)

    For the past decade, there has been a surge in debate over whether Ukraine should apply for admission to the European Union (EU), especially as neighboring states such as Poland, Hungary, and Romania have applied and joined. (10) From 2005 to 2010, Ukraine President Viktor Yushchenko was strongly in favor of Ukraine taking the financial and political steps to gain entry into the EU. (11) Under President Yushchenko's leadership, Ukraine strengthened its ties with Europe by securing a $16.5 billion loan from the International Monetary Fund (IMF),12 and by passage of a Joint Stock Company Law that was meant to encourage foreign investment. (13)

    After economic gains in the early 2000s, the 2008 world financial crisis had a crushing effect on Ukraine's economy. (14) As the country struggled to recover from the setbacks of the Great Recession, Ukraine has found itself in a sort of "tug of war" between Russia, her traditional creditor and trading ally, and the new suitor, the EU, which urges Ukraine to continue its path to join the Union. (15)

    In November 2013, Ukraine's new, more Russian-leaning president, Viktor Yanukovych, announced that he was not moving forward in negotiations for Ukraine to seek admission to the EU. (16) Massive public protests against President Yanukovych ensued in the Ukrainian capital of Kiev. (17) These "Euromaidan" protests were motivated in part by President Yanokovych's refusal to meet EU demands that Ukraine release former Prime Minister Yulia Tymoshenko from prison. (18) At certain times, protesters stormed government buildings and the presidential palace. (19) After three months of protest, violence between police and protestors escalated and more than 26 people were killed in the days of Feb. 18-21, 2014. (20) On February 22, 2014, the Ukrainian parliament adopted a resolution requesting President Yanokovych resign. (21) Lawmakers elected a new President of Ukraine the following day (22) while Yanokovych fled the country and sought refuge in Russia. (23)

    The political turmoil in Ukraine centered for months in the northwestern capital of Kiev, but with the chaotic removal of Yanokovych, the crisis spread some five-hundred miles south to Ukraine's coastal region of Crimea. (24)

    In a February 27 special session, Crimea's parliament dismissed the local government, and called a Crimea-wide referendum to be held on May 25. (25) Two days later, the Council of the Russian Federation authorized the deployment of Russian armed forces into Crimea to deal with "the threat to citizens of the Russian Federation." (26)

    On March 6, 2014, with up to 25,000 Russian service members now deployed, (27) Crimea's local parliament voted in favor of leaving Ukraine and joining Russia. (28) The assembly also asked the public to ratify the decision, and set up a Crimea-wide referendum to be held ten days later to get the public's opinion on the question. (29)

    The public that voted on March 16 in the Crimea referendum was presented by the local government with an "either/or" question: "(1) Are you in favor of Crimea joining the Russian Federation as a subject of the Russian Federation? or (2) Are you in favor of reestablishing the Republic of Crimea's 1992 constitution and status of Crimea as a part of Ukraine?" (30)

    Voter turnout was reported at 83.10% of all eligible voters, with 96.77% of ballots indicating "yes" to the question of Crimea leaving Ukraine to join the Russian Federation. (31)

    Less than two weeks after the Crimea referendum was held, the U.N. General Assembly passed a resolution entitled "Territorial Integrity of Ukraine," resolving that the referendum in Crimea had "no validity [and] cannot form the basis for any alteration of the status" of Crimea. (32)

  3. CONFLICTING PRINCIPLES OF SELF-DETERMINATION & TERRITORIAL INTEGRITY

    A recurring theme in the exploration of this subject will be the struggle between opposing principles of law--what prominent international lawyer Paul C. Szasz characterized as the "Irresistible Force" of self-determination against the "Impregnable Fortress" of territorial integrity. (33)

    1. The Right of Self-Determination

      The right of self-determination is a fundamental principle of international law. (34) The U.N. has defined the right of self-determination as a right of peoples to "freely determine their political status and freely pursue their economic, social, and cultural development." (35) The traditional concept of the right of self-determination centers on freedom from alien subjugation, domination, and exploitation. (36)

      In 1945, the right of self-determination was proclaimed in articles 1 and 55 of the U.N. Charter. (37) Most international law regulates the conduct of states, but the right of self-determination is a general principle recognized as a right of "peoples." (38) Prior to the breakdowns of Yugoslavia and the Soviet Union, the principle of self-determination was primarily invoked by colonial peoples to gain full control of their own governments. (39) Numerous U.N. resolutions invoked the right of self-determination as to colonized territories. (40) The creation of some seventy newly independent states from former colonies during the 1945-1980 period demonstrates that most countries have respected the U.N. resolutions on self-determination. (41)

    2. Territorial Integrity of States as a Limit on the Right of Self-Determination

      Self-determination is only one of many principles recognized under international law and it is limited by other principles such as respect for minority rights, democracy, the rule of law, and, perhaps most importantly, the territorial integrity of states. (42)

      The U.N. Charter provides strong protection for the territorial integrity of states. (43) Article 2(4) of the U.N. Charter resolves that States "shall refrain in their international relations from any threat or use of force against the territorial integrity or political independence of any State." (44)

      The principle of territorial integrity serves to protect the State from outside aggression--a neighboring State that wants to annex some of a State's territory--as well as internal disruptions--such as a people within the State's territory who wish to break away. (45)

      Existing States invoke territorial integrity as a supreme principle of international law. (46) Strong protection under international law for the territorial integrity of States is part of all recognized States' struggle for stability. (47) When the territorial integrity of a State is threatened anywhere in the world, other recognized States generally come to its defense. (48)

    3. Balance...

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