Image Source: The Guardian News. A satellite image provided by Maxar Technologies shows burning apartment building in north-eastern Mariupol, Ukraine, on Saturday. Photo by AP (Associate Press). https://www.theguardian.com/world/2022/mar/22/clear-sign-putin-is-weighing-up-use-of-chemical-weapons-in-ukraine-says-biden
The recent intervention in Ukraine, following the recognition of independence by Russia of the Donetsk and Luhansk regions has raised several questions, with regards to self-determination, independence, and intervention. In both regions, pro-Russian separatist troops have gained ground. In 2014, a referendum in Donetsk and Luhansk regions was finalized resulting in a majority vote in favour of declaring independence, with Donetsk reporting 89.07% of the voters in favour of it.[1] The legitimacy and legality of these referenda, however, has been questioned. Information of shooting incidents and armed militia guarding polling stations have reached the international platform.[2] The argument raised by Russia in February, to support the independence of these regions requires us to analyse the legal weight of this event. This article will demonstrate, therefore, that Russia’s military intervention in Ukraine, to secure independence of the Donetsk and Luhansk regions, is illegal by exploring the principle of non-intervention and the right to self-determination.
Did Donetsk and Luhansk gain independence under the International Legal mandate?
Statehood and self-determination are complex legal concepts under international law. The right to self-determination, as a rule of customary international law[3], allows people to determine their own destiny. They can decide their political status, as well as freely pursue their social, economic, and cultural development.[4] The principle is enshrined in Article 1 of the UN Charter and is one of the foundations for developing friendly relations. The right to self-determination is further codified under Article 1 of both the International Covenant on Civil and Political Rights as well as the Covenant on Economic, Social and Cultural Rights. The principle of self-determination is further given an erga omnes character by the International Court of Justice (ICJ) in the Namibia case, where the right has been analysed in the context of historical colonial rule. In the West Africa case, the ICJ concluded that there was an impediment to the exercise of the right to self-determination. In the case of the independence of East Timor, the UN Security Council issued a resolution that called “upon all States to respect the territorial integrity of East Timor as well as the inalienable right of its people to self-determination”.[5] More traditionally, the right to self-determination has been granted in the context of former colonies under oppression after the process of decolonization.[6]
Most of citizens of Donetsk and Luhansk seem to support the independence of the two regimes and have overwhelmingly voted “Yes” on the ballots.[7] This, however, does not affect the legality of the referendum. The right to self-determination is not a right of secession. This is the position endorsed by States, as demonstrated by India’s reservation upon its accession to the International Covenant on Economic, Social and Cultural Rights, stipulating that self-determination is only applicable in the colonial context.[8] This distinction between internal and external dimension of self-determination is also established with regards to indigenous rights. In the United Nations Declaration on the rights of Indigenous Peoples, Article 46 clarifies that the rights provided in the Declaration must not 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.[9] This is confirmed by the International Law Association with regards to self-determination for minorities, as it focuses on the internal dimension[10]. The General Assembly has clearly supported this position, by recalling that nothing in the paragraph on equal right and self-determination shall be construed as authorizing or encouraging any action which would dismember the territorial integrity or political unity of sovereign and independent States.[11] Thus, under international law, there is no legal right to secede from an established State. A significant case study for our analysis is Re Secession of Quebec.[12] While it is a decision from a domestic jurisdiction, it illustrates the model embraced globally on the issue of secession from a State. In its decision, the Supreme Court of Canada stated that international law does not grant a component part of a sovereign State a legal right to secede unilaterally from the parent State, as the people entitled to self-determination is the whole population of that State.[13] This decision also mentions exceptions where the right to self-determination can lead to independence, including colonial regimes, oppression under foreign military occupation or denial of meaningful access to government with human rights abuses. For instance, in the case of Kosovo, secession has been granted for reasons of human rights abuses against the population where the relationship between Kosovo and Serbia had become restless.[14] These exceptions are acknowledged by the UN General Assembly, via the Declaration on the Inadmissibility of intervention reaffirming the right to self-determination and independence of people under colonial domination, foreign occupation, or racist regimes.[15] Nonetheless, these exceptions do not apply here, as the 2014 referendum in Donetsk and Luhansk region is not conducted within a colonial background, a foreign occupation nor an established state of human rights abuses.
The lack of rights under international law means that one needs to look at the position under national law for legitimacy. Indeed, to circumvent international law, one approach is to gain the right under national law to obtain a referendum. Some recent examples illustrate the case of Quebec and the relationship between international and national law on the question of separation. Another example is the event in Catalonia, where a referendum was held on October 1st, 2017. As it was not authorized by the Spanish government, the outcome of the vote had no legal weight and was condemned by the international community. In comparison, Scotland has been fighting for an authorization to hold a referendum to obtain their independence in accordance with a legally valid national proceeding, giving them the ability to act upon a positive result. Ukraine’s constitution does not mention the right or possibility of secession.[16] Article 73 of their Constitution allows for territorial alterations only through an “all-Ukrainian” referendum.[17] As a result, the referendum held in 2014 had no legal basis under national law and therefore did not give legitimacy under international law to the people from these regions to request the intervention of Russia.
Prohibition of intervention:
What does the state of lawlessness in which the referendum was conducted mean for the Russian intervention that took place in February? Since these regions remain part of Ukraine, the military intervention of Russia in those regions does not solely contravene the prohibition of the use of force under international law, it also violates one of the oldest norms of international law, namely the prohibition of intervention. The doctrine is written down in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.[18] In this Resolution, the General Assembly proclaims the duty of non-intervention, stipulating that no State has the right to intervene, directly or indirectly for any reason whatsoever, in the internal or external affairs of any other States.[19] The doctrine is recalled in the Declaration on the inadmissibility of intervention in the domestic affairs of States and the protection of their independence and sovereignty.[20] It prohibits any direct or indirect external interference into the affairs of another State. Furthermore, this doctrine is a customary norm of international law confirmed by the International Court of Justice (ICJ) in Military and Paramilitary activities in and against Nicaragua.[21] Since customary international law is a primary source of international law,[22] any intervention of any form, against a State, its political, economic, and cultural affairs amounts to a violation of international law. This doctrine is fundamental as it is based upon and guarantees the principle of equal sovereignty. In the preamble of the resolutions addressing non-intervention, the importance of sovereign equality as the cornerstone of the international system is reaffirmed.[23] Sovereignty includes both the territorial integrity of a State as well as its political independence. Both dimensions are relevant in the present case since Russia’s military intervention into the Ukrainian territory is based on the status of these two regions and it undermines the territorial integrity and political independence of a sovereign State. Russia’s armed interference clearly falls within the ambit of the doctrine of non-intervention. The concept, however, while being related to the prohibition of force, is much broader. As a result, it is arguable that even before the military intervention, Russia did interfere with the internal affairs of its neighbor. Indeed, the premature recognition of both regions as independent by Russia in spite of the illegality of the process under national law amounts to a violation of international law. Interestingly, initially Vladimir Putin, the Russian leader who once supported the separatist movement from these regions, publicly distanced himself from the referendum, urging the vote to be postponed.[24]
While the doctrine of non-intervention is not absolute, the present facts do not meet the requirement of the legally permissible intervention. In the case of Nicaragua, the court stated that an exception exists. The ICJ declares that intervention is allowed on the request of the government of the State.[25] It is widely accepted that intervention by invitation is allowed under international law. Yet, legal and practical issues arise with regards to who represents the government and therefore, who can make a valid request to circumvent the prohibition of intervention. Indeed, in situations of civil strife, it is possible to have on one side the elected government and on the other side an opposition group who gains effective control over some part of the territory. There are many examples, where different groups claim to represent the State, as recently with Afghanistan, between the elected government and the entity who gains effective control, the Taliban. Some academics argue that legitimacy is now the determining criteria to have the power to represent the State and therefore, make a valid request for intervention, while others argue that effective control remains the determining criteria under international law. In the present case, it is evident that only the government of Ukraine can issue an invitation for intervention as no other entity is claiming. The government has both legitimacy and effective control over the whole territory. Even if an opposition group could claim to have some control in these regions, as members of the opposition in a civil strife, they cannot request help from a foreign State as invitations can never legally be issued by the opposition.[26] While it is unclear whether a formal invitation was expressed, no members of the opposition from these regions had the authority to make a valid request under international law. Since there is no other established exception to the doctrine of non-intervention, Russian interference on Ukrainian territory is, unequivocally, a violation of international law.
Conclusion
With the mediatisation of the conflicts, and the various, sometimes conflicting opinions put forward, it is difficult to know where the law stands. This article seeks to clarify the legality of Russia’s intervention in the Donetsk and Luhansk regions. This is even more significant as Russia is intensifying its attack in the Donetsk regions. Our analysis demonstrates that Russia’s intervention in both regions cannot be justified based on the referendum which took place in 2014 and is clearly a violation of international law.
[1] The Guardian “Ukraine: Pro-Russian Separatist Set for Victory in Eastern Region Referendum” 12 May 2014, <https://www.theguardian.com/world/2014/may/11/eastern-ukraine-referendum-donetsk-luhansk> accessed 19 March 2022.
[2] BBC News “Ukraine Rebels Hold Referendums in Donetsk and Luhansk” 11 May 2014, <https://www.bbc.com/news/world-europe-27360146> accessed 19 March 2022.
[3] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, (Advisory Opinion) (2019) ICJ Report 169.
[4] Unrepresented Nations and Peoples Organization ‘Self-determination’, 21 September 2017, <https://unpo.org/article/4957> accessed 31 March 2022.
[5] UNSC, Res 384, (22 December 1975) UN Doc S/RES/384.
[6] Following decisions of cases such as the Namibia case and Chegoes Island. See also Sofia Cavandoli, The unresolved dilemma of self-determination: Crimea, Donetsk and Luhansk (2016) 20(7)The International Journal of Human Rights, 875-892.
[7] The Guardian, ‘Ukraine: Pro-Russian Separatist Set for Victory in Eastern Region Referendum’ 12 May 2014, <https://www.theguardian.com/world/2014/may/11/eastern-ukraine-referendum-donetsk-luhansk>, accessed 19 March 2020.
[8] International Covenant on Economic, Social and Cultural Rights, (adopted 16 December 1966, entered into force 3 January 1976) 933 UNTS.
[9] United Nations, Declaration on the Rights of Indigenous Peoples, 13 September 2007, General Assembly Resolution A/61/295, Article 46.
[10] International Law Association, Kyoto Conference (2020), Implementation of the Rights of Indigenous Peoples, Final Report, < https://www.ila-hq.org/images/ILA/docs/kyoto/Comm%20Impl%20Rights%20Ind%20Peoples_Draft%20Final%20Report%20Kyoto%202020.pdf >, accessed 19 March 2022, p4.
[11] United Nations General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV), 24 October 1970.
[12] Re Secession of Quebec [1998] 2 R C S 217.
[13] ibid 12.
[14] Tamara Jaber, A case for Kosovo? Self-determination and secession in the 21st century, (2011) 15(6)The International Journal of Human Rights, 926-947.
[15] United Nations General Assembly, Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, A/RES/36/103, 9 December 1981.
[16] Constitution of Ukraine (last revised on 03.09.2019) Конституция Украины с изменениями от 03.09.2019 [1996] 27-IX, < https://zakon.rada.gov.ua/laws/show/en/254%D0%BA/96-%D0%B2%D1%80#Text>.
[17] ibid 20, article 73. See also European Commission on Democracy through Law (Venice Commission) ‘Joint Opinion on Democracy Through All-Ukrainian Referendum’ 2020 990/2020.
[18] ibid 11.
[19] ibid 11.
[20] ibid 15, para 1.
[21] Case concerning Military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ 14, at 202 (Nicaragua case).
[22] Statute of the International Court of Justice, (adopted 26 June 1945, entered into force 24 October 1945), 15 UNCIO 355, Article 38 (1)b.
[23] ibid 11, preamble, para 12.
[24] New York Times, ‘Ukraine Vote on Separation Held in Chaos’ 12 May 2014, <https://www.nytimes.com/2014/05/12/world/europe/ukraine-referendum.html> accessed 19 March 2022.
[25] ibid 21, 246.
[26] ibid 21, 246.
Bibliography
Primary Sources:
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (UK v Mauritius) [2019] ICJ 1164.
Case concerning Military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ 14.
Constitution of Ukraine (last revised on 03.09.2019) Конституция Украины с изменениями от 03.09.2019 [1996] 27-IX.
Statute of the International Court of Justice, (adopted 26 June 1945, entered into force 24 October 1945), 15 UNCIO 355.
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Secondary Sources:
European Commission on Democracy through Law (Venice Commission) ‘Joint Opinion on Democracy Through All-Ukrainian Referendum’ 2020 990/2020.
International Law Association, Kyoto Conference (2020), Implementation of the Rights of Indigenous Peoples, Final Report.
Cavandoli Sofia‘The unresolved dilemma of self-determination: Crimea, Donetsk and Luhansk’ (2016) 20(7) The International Journal of Human Rights, 875-892.
Jaber Tamara, ’A case for Kosovo? Self-determination and secession in the 21st century’ (2011) 15(6) The International Journal of Human Rights, 926-947.
United Nations General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV), 24 October 1970.
United Nations General Assembly, Declaration on the Inadmissibility of Intervention, and Interference in the Internal Affairs of States, A/RES/36/103, 9 December 1981
UNSC Resolution 384 (1975) of 22 December 1975.
United Nations, Declaration on the Rights of Indigenous Peoples, 13 September 2007, General Assembly Resolution A/61/295.
Websites:
BBC News, ‘Ukraine Rebels Hold Referendums in Donetsk and Luhansk’ 11 May 2014, <https://www.bbc.com/news/world-europe-27360146> accessed 19 March 2022.
New York Times, ‘Ukraine Vote on Separation Held in Chaos’ 12 May 2014,<https://www.nytimes.com/2014/05/12/world/europe/ukraine-referendum.html> accessed 19 March 2022.
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The Guardian, “Ukraine: Referendum on ‘self-rule’ in eastern regions begins” 11 May 2014, <https://www.theguardian.com/world/2014/may/11/ukraine-referendum-for-self-rule-in-eastern-regions-begins-live-updates> accessed 19 March 2022.
Unrepresented Nations and Peoples Organization ‘Self-determination’, 21 September 2017, <https://unpo.org/article/4957> accessed 19 March 2022.
Authors
Athénaïs Levraud Research Assistant (athenais.levraud@gmail.com )
Ema Hazarosian Research Assistant (emahazarosian@gmail.com)