Contemporary application of the principle of territorial integrity under International law raises serious concerns. Arguably, this issue is becoming popular once again now that the Crimean referendum has finally taken place with 95% of the Crimean population having voted for secession of Crimea from Ukraine,[1] which, in turn, renders the interests of the people of Crimea claiming secession incompatible with territorial interests of Ukraine.

As pointed out by scholars, International law does not grant sub-state entities a general right to secede from their parent states, nor does it prohibit secession,[2] whereas exceptions to this supposed neutrality arise from the international legal principles of territorial integrity and self-determination.[3] To this end, in order to determine whether the secession of Crimea from Ukraine is legal one should delve deeply into the interplay of the principle of territorial integrity and the principle of self-determination.

The United Nations Charter,[4] the Declaration on Principles of International Law,[5] and the Declaration on the Granting of Independence to Colonial Countries and Peoples[6] state that “all peoples have the right to self-determination” and that “by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”[7] At the same time, all these documents justify the principle of territorial integrity of states which implicitly contradicts the right of peoples to self-determination.

In particular, the aforementioned Declaration on the Granting of Independence to Colonial Countries and Peoples states that “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 United Nations.”[8] Given that the implementation of the right of peoples to self-determination undermines the principle of territorial integrity of states only in cases of secession of a part of a state’s territory in any form (the so-called ‘external self-determination’), the compliance with the principle of territorial integrity shall take place only in cases where secession is deemed legal.

Pursuant to interpretation utilized by the UN and based on the Declaration on Principles of International Law and the Vienna Declaration and Programme of Action[9] secession is to be deemed legal if:

1. It concerns the people in territories that are subject to decolonization; or
2. It is envisaged by the Constitution (or any other national law) of the parent state concerned; or
3. The territory inhabited by a certain people was occupied or annexed after 1945.[10]

Given that these are the internationally recognized grounds which render the secession from a parent state legal it is worth mentioning that none of the three listed options are applicable to the Crimean situation.

However, international legal practice provides for other criteria which, if satisfied cumulatively, render the secession legal. Thus, pursuant to state practices, judicial decisions and the teachings of publicists, the implementation of the right of people to self-determination in the form of a secession prevails over the principle of territorial integrity of the parent state when:

1. The secessionists are a ‘people’ (in the ethnographic sense);
2. The state from which they are seceding seriously violates their human rights; and
3. There are no other effective remedies under either domestic law or international law. [11]

Unfortunately, the notion of ‘people’ isn’t quite clear from the legal perspective[12] and in different times it was referred to as to describe the nationals of a state, the population of a territory which is subject to decolonization or an ethnic group. However, despite the fact that the Russian population claiming secession is an ethnic majority in Crimea,[13] it is not its indigenous and native population, as opposed to Crimean Tatars.[14] Moreover, as it has been stressed in Re Quebec:

[I]t is not necessary to decide the “people” issue because … a right to secession only arises under the principle of self-determination of people at international law where “a people” is governed as part of a colonial empire; where “a people” is subject to alien subjugation, domination or exploitation; and possibly where “a people” is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.  In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.[15]

Thus, the Russian population of Crimea does not meet the threshold of oppressed people, nor can it be suggested that Russians have been denied meaningful access to government to pursue their political, economic, cultural and social development. In these circumstances, they do not enjoy the right to effect the secession of Crimea from Ukraine under International law.

Moreover, one should note, that these provisions do not provide minorities with the right to secede, since the latter are entitled to special protection regime under the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities[16] and Article 27 of the International Covenant on Civil and Political Rights.[17] According to the definition proposed by Francesco Capotorti, Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, a minority is:

A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.[18]

Thus, the Russian population of Crimea willing to secede from Ukraine constitutes a minority and, respectively, is not entitled to secession under any of the aforementioned conditions.

Therefore, given the fact that the Russian population of Crimea constitutes a minority in Ukraine and is not denied meaningful access to government to pursue their political, economic, cultural and social development, the secession of Crimea from Ukraine is to be deemed illegal under International law since it violates the principle of territorial integrity which, in turn, should prevail and be fully enjoyed by Ukraine.

Written by Jan Guardian