Oleksii Plotnikov, PhD (international law)

The issue of the rights of the indigenous peoples of Crimea has been repeatedly considered by the “ARC”. Special essays were devoted to the questions of the rights of indigenous peoples, the property issues, the presentation of the struggle of the indigenous peoples for survival, etc. This publication will, however, address an issue that is partly incomprehensible even to the sympathizers of the indigenous peoples of Crimea, and which is often used for political manipulation both within Ukraine and by the aggressor state. It is about the right of indigenous peoples to self-determination, which is allegedly a manifestation of separatism.

From the very beginning, I would like to reveal main point of the article: the argument about the separatist nature of the right of indigenous peoples to self-determination is manipulative and is aimed at creating distrust for indigenous peoples. It does not comply with international law, which does not support separatism in any form, except in certain extreme cases, some of which will be discussed below. So how do the right of indigenous peoples to self-determination and the territorial integrity of the state relate to each other?

The idea of the right of every people to self-determination has its roots in the “Spring of Nations” of the mid-nineteenth century, when, under the influence of international legal ideas of previous epochs and republican revolutions, the idea of the state as a personal feudal property of the monarch lost its ground to the idea of the state as a commonwealth of the nation. The Versailles Peace Conference, which ended the First World War, helped to consolidate the idea of the right of peoples to determine their own destiny. It was during this conference that US President Woodrow Wilson proposed his famous 14 points of the new world order [1]. Much of these points were devoted to the right to self-determination of individual peoples (restoration of Belgium, Poland, the right of the peoples of Austria-Hungary to self-determination). The charter of the League of Nations, based on the decisions of the Versailles Conference, provided for the right of every state, dominion, or colony to join the League as a full member.

The Statute of the League, however, did not provide for mechanisms for exercising this right outside the control of the dominant powers. The victorious states in Versailles actually decided which of the peoples would receive the right to self-determination and which would not. This became one of the critical shortcomings of the Versailles system of international relations, which ultimately contributed to its collapse and led to terrible international tragedies during World War II.

The UN Charter, adopted in 1945, [3] identified the development of friendly relations between nations as one of the Organization’s tasks, based on respect for the principle of equality and self-determination of peoples. However, the same Charter enshrined the principle of territorial integrity of states. Later, the right of nations to self-determination and the principle of territorial integrity developed simultaneously in international law. The Declaration of Principles of International Law of 1970 gives some idea of their relationship [4].

The Preamble and Principle 1 of the Declaration prohibit the use of force or threat of force by one State against territorial integrity or political independence of any State. The Declaration condemns all manifestations of aggressive war, and calls for the settlement of all disputes between states by peaceful means. According to the 1974 Declaration on the Definition of Aggression [5], aggression against the territorial integrity of a state means both open hostilities including the “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein”.

Thus, in international law, the principle of territorial integrity is a principle that exists between states and prohibits states from occupying part of the territory of another state. Of course, post-World War II borders are not considered fair by all states, but revising such borders can only lead to a new war, so in international law the choice is to prevent war, even if it perpetuates outdated territorial conflicts between states. In the postwar period, a number of techniques were used in international relations to resolve or mitigate territorial disputes, ranging from the voluntary transfer or exchange of territories to the creation of special territorial zones on ethnic, political, economic, or other grounds, as part of one state, would have a special relationship with another state.

Returning to the Declaration of Principles of International Law, it recognizes the principle of equality and self-determination of peoples, and the obligation of States to refrain from acts of violence that would prevent the right of peoples to self-determination. The Declaration clarifies that all peoples have the right to freely determine their political status and to pursue their economic, social and cultural development without outside interference, and that every State must respect this right. Every state must promote the realization of the people’s right to self-determination, including to end of colonialism.

The right to self-determination within the meaning of the Declaration is aimed at the final dismantling of the system of colonialism. In particular, it establishes that the creation of a sovereign and independent state, free accession to or union with an independent state, or the establishment of any other political status freely determined by the people are forms of manifestation of the people’s right to self-determination. Territories of colonies or other non-self-governing territories have the right to self-determination.

It may seem that it follows that any nation that does not yet have its own state has the right to demand to create one. However, this is not possible in practice. According to R. Doyle’s fundamental study “Ethnic Groups in the World” [6], there are more than five thousand ethnic groups in the world that distinguish themselves from their neighbors. There are more radical estimates of the evangelical organization Joshua Project [7], which is engaged in preaching among small nations, according which identify from 11 to 24 (according to different assessment methods) ethnic groups. Obviously, the existence of five or even 24,000 states in the world is absurd, especially considering that many of these ethnic groups do not seek to create their own state, or share territory with another ethnic group. Therefore, a balance is needed between the right of nations and peoples to self-determination, and the principle of territorial integrity of states, and the basic requirements of the international order.

It is this balance that is indicated in the next paragraph of the Declaration of Principles of International Law, according to which nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.

Two important conclusions follow can be drawn from this provision. Firstly, the right to self-determination can be exercised (and is in fact exercised by the vast majority of the world’s peoples) within states in which the main ethnic group may be another people. Secondly, such a state has obligations to the peoples living in its territory who do not have their own state.

The main provisions on the specific content of the right of peoples to self-determination can be found in the International Covenant on Civil and Political Rights [8] and the International Covenant on Economic, Social and Cultural Rights of 1966 [9]. Unlike declarations, which are documents of soft law and express the common position of the world community, the Covenants are documents of hard law, i.e. they create specific international legal obligations for states, and there are special committees within the UN to monitor their observance, which may decide that states are in breach of their obligations.

The first article of these two Covenants is common. It provides that all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

It can be seen that the Covenants do not refer to self-determination exclusively in the form of creating one’s own state. In fact, there is a continuum of possibilities available for the people, on the one hand which is the recognition of only some rights, for example, the preservation of native culture, and on the other – full political self-determination.

The question of the extent to which the people will benefit from such a continuum is political rather than legal, and the international law, by far, does not offer a response. Thus, considering the question of compliance with international law of the unilateral declaration of independence of Kosovo, the UN International Court of Justice did not respond to this question. It merely stated that international law does not, as such, prohibit the unilateral declarations of independence.

There are cases when the (attempted) realization of the right to self-determination was a result of long political, or even historical process. In fact, the case of Ukraine can also be seen as a consequence of gaining independence politically, when the country first managed to achieve formal independence as part of a broader union. However formal the independence of Ukraine was within the USSR, it allowed the country to become a founding member of the United Nations, and in 1991 to gain full independence through a political agreement. The most famous recent example of an attempted declaration of independence through a political agreement is the Scottish referendum, which could well have ended with the emergence of a new state on the world map.

International law does not say anything about such political processes, which are considered internal affairs of states, provided that the state does not commit obvious and gross violations of human and people’s rights. For example, there is hardly a specific obligation of Spain to recognize Catalonia’s independence, and the difficult relationship between the central government in Madrid and the proponents of independence in Barcelona does not prevent Spain from being a member of the European Union.

The question of the possibility of self-determination of a non-sovereign people through separation from the territory of the mother state, and the creation of its own state, are at the intersection of international law and constitutional law. For example, the Venice Commission, which works on the issues of constitutional law, i.e. the law of the internal structure of states, spoke quite extensively on this topic. The Commission’s conclusion [11] following the political changes in Europe in the 1990s, accompanied by the emergence of new states and the beginning of their accession to the EU, can be summarized as follows. First, the concept of territorial integrity and national unity takes precedence, for which even restrictions on human rights are possible. Secondly, the term “self-determination” is in no way equal to the term “secession”.

Third, the term “self-determination” can be seen as part of a decolonization process that is almost complete, or as part of the right of peoples to determine their own political status and development goals within state borders (internal self-determination). Such internal self-determination can exist in the form of special collective rights in the cultural sphere, in the form of federalism, regionalism, or other forms of local self-government within the state. The interpretation of the right to self-determination as a domestic law is aimed at avoiding conflicts.

From this point of view, it is obvious that in modern Europe the right of peoples to self-determination is not only not identical to separatism, but directly prohibits it. Ideally, those peoples who do not have their own state should have their own political representation not only within their territorial state, but also at the level of the Council of Europe and the European Union, which will allow them to fully exercise their rights, including in international relations, i.e. to enjoy the right that usually belongs only to states.

This approach is not unique to Europe. We can mention the fundamental decision of the Constitutional Court of Quebec on the independence of this French-speaking Canadian province [12]. In it, the Court expressed the maxim known in both constitutional and international law: “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.  Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development.  In the circumstances, the “National Assembly, the legislature or the government of Quebec” do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally”.

However, in international law there is still a situation where the principle of territorial integrity may be overruled, and part of the territory of a state may be lawfully separated from that state unilaterally. This is the so-called remedial secession. These are situations where secession is the only way to stop the terrible violations of international law and human rights that a state is already committing against a part of its population, and there are no other possibilities to stop them than to separate a part of the state.

Examples of lawfully and completely completed remediation secessions in the world are more than few. These are the secession of Bangladesh from Pakistan after the civil war and genocide [13] importantly, not all scholars agree that it was the remedial secession) and the secession of East Timor from Indonesia [14]. A landmark case was the separation of South Sudan from Sudan [15]. The case of Kosovo can be considered a very controversial example of remediation secession.

Thus, in South Sudan, secession was the result of decolonization processes that had been lasting since the 1960s. The civil war in the country between the Arab north and the Nilotic south lasted intermittently for over thirty years. Such a prolonged confrontation clearly made it impossible for the two parts of the country to coexist further, so an agreement was reached in 2005 to establish a six-year transition period, followed by a successful referendum in 2011 on South Sudan’s independence. These processes took place under the control of the UN and the African Union. Only following the recognition of the results of the referendum by the world community was the independence of South Sudan recognized.

This is not comparable to, for example, situation of Kosovo, where Yugoslavia has lost control of the region as a result of an internal armed conflict that has resulted in military intervention by foreign powers. However, despite reports of massive and gross human rights abuses during the conflict, and appointment of an administration independent from Belgrade, the UN still called for the preservation of Yugoslavia’s territorial integrity, [16] and the question of finalization Kosovo’s secession was questionable. Kosovo’s declaration of independence in 2008 was a unilateral act, leaving the country in a state of non-recognition (including Ukraine). (For more information on international law related to the secession of Kosovo, see: [17]).

International law considers remedial secession as an extremely undesirable scenario. Importantly, it can in no case take place under the influence of another interested state. In this case, it is not about secession, but about annexation, in violation of the principle of territorial integrity of states. For this reason cases such as the Turkish occupation of Northern Cyprus or the Russian Federation’s occupation of Crimea, parts of Donetsk and Luhansk oblasts, Transnistria, and parts of Georgia cannot be considered cases of remediation secession, and constitute illegal occupation.

As a preliminary summary, it can be concluded that, the right of peoples to self-determination in international law is realized within the framework of existing states. The right to secede from the state unilaterally arises either as a result of an internal agreement under the constitutional law of the state, or may be the result of very extreme circumstances, such as a prolonged civil war or genocide. The best solution remains for the state to fully recognize and assist in promotion of the rights of all peoples and all people living in its territory.   

1. https://www.theworldwar.org/learn/peace/fourteen-points.

2. Treaty of Peace with Germany (Treaty of Versailles). https://www.loc.gov/law/help/us-treaties/bevans/m-ust000002-0043.pdf.

3. Charter of The United Nations ad Statute of the International Court of Justice. https://treaties.un.org/doc/publication/ctc/uncharter.pdf.

4. Declaration on Principles of International Law Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations.https://www.un.org/ruleoflaw/files/3dda1f104.pdf.

5. Resolution 3314 (ХХIХ) Definition of Aggression https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/3314(XXIX)&Lang=E.

6. Doyle R. Ethnic Groups in the World. https://www.scientificamerican.com/magazine/sa/1998/09-01.

7. https://joshuaproject.net/resources/articles/how_many_people_groups_are_there.

8. International Covenant on Civil and Political Rights Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

9. International Covenant on Economic, Social and Cultural Rights Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.

10. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403 https://www.icj-cij.org/public/files/case-related/141/141-20100722-ADV-01-00-EN.pdf.

11. Self-Determination and Secession in Constitutional Law Report adopted by the Commission at its 41th meeting (Venice, 10-11 December 1999). https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-INF(2000)002-e.

12. Reference re Secession of Quebec Collection    Supreme Court Judgments, 1998-08-20 Report       [1998] 2 SCR 217. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do.

13. Bangladesh: The Forgotten Genocide. https://sites.uab.edu/humanrights/2017/04/21/bangladesh-forgotten-genocide.

14. J.R. Avgustin. The United Nations and Self-Determination in the Case of East Timor. https://www.e-ir.info/2020/02/27/the-united-nations-and-self-determination-in-the-case-of-east-timor.

15. Knox C. The Secession of South Sudan: A Case Study in African Sovereignty and International Recognition. An Honors Thesis College of St. Benedict/St. John’s University In Partial Fulfillment of the Requirements for All College Honors and Distinction in the Department of Political Science. May 2012. https://digitalcommons.csbsju.edu/cgi/viewcontent.cgi?article=1001&context=polsci_students.

16. Resolution 1244 (1999), 10 June 1999. https://unmik.unmissions.org/sites/default/files/old_dnn/Res1244ENG.pdf.

17. Kosovo: International Law and Recognition A Summary of the Chatham House International Law Discussion Group meeting held on 22 April 2008. https://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/il220408.pdf.