Referendum in Crimea: Developing International Law on "Territorial Realignment" Referendums

By White, Thomas W., Jr. | Houston Journal of International Law, Summer 2016 | Go to article overview

Referendum in Crimea: Developing International Law on "Territorial Realignment" Referendums


White, Thomas W., Jr., Houston Journal of International Law


  I. 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)

II. 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. …

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