Who has the right to self-determination in the Crimea?

In connection with the annexation of Crimea by Russia, Russian politicians and diplomats as the main argument justifying this annexation, tried very awkwardly to present the right of peoples to self-determination. Let's try to understand this rather complicated even for modern science of international law, a question that has a very long history.

So, in the most general sense, the right to self-determination is understood as “the right of a people to choose its own legal and political institutions and status in a community of nations”. At the same time, in the science of international law, the question of whether national self-determination is a political concept, a theoretical principle or a legal right is still debatable. If some lawyers deny the legal nature of this right at all, others, considering it at the same time as a legal principle and political postulate, while emphasizing that this right applies mainly to the colonial peoples and peoples in the occupied territory. Thus, for example, in the German doctrine of international law, the legal nature of the right to self-determination of peoples is seriously questioned, in particular, because the people, as a rule, are not considered as subjects of international law.

Initially, the right to self-determination in the history of international relations was viewed as a purely political principle. So, this right as a political postulate begins to manifest itself during the First World War against the backdrop of the desire of a number of peoples to create independent states on the ruins of the then empires. In this regard, at the end of the First World War, two political-philosophical concepts of the right of nations to self-determination are formed, one of which was formulated by Lenin in 1917, and the second by US President Woodrow Wilson in 1918. The Lenin concept of self-determination of nations was of a radical nature and implied the granting of this right to the fullest extent, up to the possibility of forming their own state, to all peoples and nations without exception. On the other hand, as Lenin and the Bolsheviks were convinced, ultimately, as a result of the world revolution, all nations will unite into a single world republic of the soviets.

The concept of self-determination of nations, proposed by US President Woodrow Wilson, was liberal-democratic in nature, based on the “consent of the governed” and expressed the idea that each nation has the right to independently choose the form of its government. In the doctrine of international law, the Wilson concept of self-determination of nations is commonly called "internal self-determination." This political concept concerned mainly those nations that were part of the defeated in the First World War empires.

Both the concept of self-determination of nations, the radical Leninist and liberal Wilson's, neutralized each other so effectively that the principle of self-determination is not even mentioned in the Charter of the League of Nations 1919. Despite this, the principle of self-determination as a political, rather than a legal principle, had some influence on the interwar international order, as exemplified by the decision of the 1920 Commission of International Lawyers (Commission of International Jurists) XNUMX of the year regarding the Finnish-Swedish Aland Islands status dispute. it was said that "... the self-determination of nations - in contrast to territorial integrity - is only a political postulate and as such should be understood and applied."

In the interwar period, a concept of self-determination was formed in Germany in the circles of West European Social Democracy, one of whose authors was Karl Renner, according to which self-determination of a people or nation within a multi-ethnic state can be achieved by granting this people or nation wide internal autonomy in this multi-national state. And although this concept was not widely accepted at that historical period, it nevertheless had a great influence on modern German science of international law, which, apparently, still adheres to this understanding of the right to self-determination.

The legal form of existence of the principle of self-determination of nations (peoples) acquires only in the post-war period due to the emergence of the United Nations, in the Charter of which it is first mentioned already as one of the principles of an international legal character. Article 1 of paragraph 2 of the UN Charter states that one of the goals of this international organization is the development of friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.

The science of international law writes that in the initial period of its existence, the principle of self-determination, expressed in the UN Charter, had the character of lex imperfecta, i.e. at that time it had not yet received full recognition as a principle of international law, and its specific content was unclear even to the creators of the UN Charter. Thus, the American researcher on the rights of national minorities, Inis Cloud, argues that the UN Charter was created without taking into account the issue of the principle of self-determination, which arises in connection with the consideration of the problem of the status of national minorities, since at the time of the creation of this Charter the world was dominated by the concept of the nation state as basic unit of political organization. Moreover, as another researcher, Jennifer Jackson Preece, notes, in the post-war period there was a deliberate movement towards discrediting the idea of ​​self-determination, understood in ethnic categories. This was a reaction to the failed experiment of the League of Nations in connection with the practice of implementing the right of nations to self-determination.

This is how Jennifer Jackson Pris explains the socio-political context in which the principle of self-determination was formed: “As a result of the Second World War, national self-determination — as well as secession and separatism that it could provoke — was seen as a perceived threat to international order. Such concerns were heightened by the prospect of the spread of decolonization and the creation of new, potentially weak, states in Asia and Africa. As a result, the Charter of the United Nations, in the hope of avoiding contradictions related to minorities that would undermine the United Nations system, contains an obscure expression: “self-determination of peoples” as opposed to the more familiar and discredited “national self-determination”. The articles 73 and 76 further define such “peoples” in the categories of the colonial territory, and not according to their ethnic origin. The use of civilian categories to assess claims of self-determination was motivated by the desire to preserve the territorial status quo in the colonies, and through this international peace and security. This position was particularly expressed and reaffirmed in 1960 in the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples, which clearly states that “any attempt to partly or fully destroy the national unity and territorial integrity of a country, incompatible with the purposes and principles of the Charter of the United Nations. ”

It must be said that some lawyers in general deny the legally binding right to self-determination in the form as it is expressed in the UN Charter, since the text of the Charter does not contain any instructions regarding the content of this right, its subjects and specific rights and obligations arising from this right.

One of the first international documents disclosing the content of the right of peoples to self-determination was the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by Resolution 1514 (XV) of the UN General Assembly from December 14 1960. According to this resolution, “all peoples have the right to self-determination; by virtue of this right, they freely establish their political status and carry out their economic, social and cultural development. ” At the same time, this resolution emphasized that “any attempt aimed at partially or completely destroying the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”, and also that “all states must strictly and in good faith to comply with the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and this Declaration on the basis of equality, non-interference in the internal affairs of all states, respect for sovereign Rav of all peoples and the territorial integrity of their states ".

In a word, initially the people’s right to self-determination had a purely anti-colonial orientation, and should not violate the territorial integrity of states.

Later this right was enshrined in international documents such as the Final Act of the Conference on Security and Cooperation in Europe 1975 of the Year and in the “Declaration on Principles of International Law Concerning Friendly Relations and Cooperation between States in accordance with the Charter of the United Nations” UN Assembly 24 December 1970. In addition, the right to self-determination was also expressed in the 1966 Covenants on Human Rights of the Year, also in the anti-colonial spirit.

Regarding the content of the right to self-determination in the 1970 Declaration of Principles of International Law, Eduardo Jiménez de Arechaga, an eminent international lawyer and member of the UN International Court of Justice, wrote: countries of the world and could lead to the dismemberment of existing states. Such a possibility could not be allowed by such an international organization consisting of states as the UN, except for very special cases. ”

In the 50 and 60 of the twentieth century, the first attempts to use the right to self-determination with the aim of secession, separation from the existing state. However, these attempts met with decisive resistance from the UN member states. Thus, in 1970, in connection with the unsuccessful attempt at secession of the Nigerian province of Biafra, the then UN Secretary-General U Thant stated: "... the United Nations never agreed, and I do not believe that the institution of secession of a part of the member state will ever exist" .

In the 1990-s, in connection with the collapse of the USSR and the SFRY, the international community faced an increase in separatist movements seeking, under the slogan of the right to self-determination, for secession and the formation of their states. As a result, pockets of interethnic conflicts erupted in the post-Soviet space and in Europe, entailing numerous victims. All this, of course, could not but arouse the concern of the world community about the too broad interpretation of the right to self-determination, which was used by separatist movements in a number of countries. The international community’s response to this was the adoption of the United Nations Millennium Declaration in 2000, in which the UN mentioned the right of peoples to self-determination only as the right of those peoples who remain under colonial domination and foreign occupation. Thus, the UN actually spoke in favor of the anti-colonial and anti-occupation interpretation of the principle of self-determination of peoples.

If we talk about modern science of international law, then it is clearly dominated by the view that the right of peoples (nations) to self-determination does not include the right to secession (secession) from the existing state. So, the famous English lawyer, former judge of the International Court of Justice Rosalyn Higgins believes that the people have the right to self-determination in the sense of the entire population of a given state, while the national minority living in the territory of this state does not have that right. Representatives of the French school of international law tend to perceive the right to self-determination in its narrow anti-colonial meaning. As French lawyers write, “in modern international law there is still no recognition of the legality of a department”.

It is important to note that most representatives of modern Russian science of international law interpret the principle of self-determination in the sense that the right to self-determination belongs to the people, understood as the entire population of a given state. However, they strongly oppose secession. So, the Russian lawyer S.V. Chernichenko, in his fundamental work The Theory of International Law, notes: “Self-determination of nations at the expense of other national groups that form a single people with the main (titular) nation is a perversion of the idea of ​​self-determination and could only lead to ethnic cleansing condemned by the United Nations and international conflicts.

At the same time, the Russian literature on international law emphasizes that the principle of self-determination of peoples "is directed primarily against colonialism" and "accordingly, the main attention is paid to the external aspect of the principle - liberation from foreign oppression."

In the doctrine of international law, there is still a debate over who, the people or the nation, is the subject of the right to self-determination. Moreover, both concepts have no clear legal content.

If some authors, in the context of the right to self-determination, prefer the term “nation”, because, in their opinion, the principle of self-determination applies to all nations, regardless of their level of development and form of political existence, others argue that only people can be the subject of the right to self-determination , not a nation.

Professor James Summers in his book “Peoples and International Law” attempted to understand the basic concepts related to the right to self-determination, such as “people”, “nation”, “minority” and “indigenous people”. Thus, it defines the people as a national group with certain national characteristics. In this sense, the word "people" is used both in everyday speech and in international law. However, as Professor Summers acknowledges, the question remains as to what these particular national characteristics are. At the same time, he notes that the concept of “people” in law can be significantly narrower in content than the same concept in everyday speech.

The concept of "nation", according to Summers, is close to the concept of "people", understood as a national group. Therefore, in everyday speech, both words are often used as synonyms. Legal research, this author believes, was never able to draw a clear distinction between the concepts of “people” and “nation”. Both the people and the nation, in his opinion, have the right to self-determination. At the same time, the concept of “nation” may be broader than the concept of “people”, and also denote political institutions. It is interesting that, as Summers writes, if the word “nation” in English is often used as a synonym for the word “state”, then the word “state” is rarely seen as synonymous with the word “people.”

As for the concept of “minority”, then, as Summers notes, there is no generally accepted definition of this concept in legal science. At the same time, between the concepts of “people” and “minority”, international law has drawn a legal border, since minorities, unlike peoples, do not have the right to self-determination. Despite the lack of a generally accepted definition of a minority as such, minorities, according to Summers, have such characteristics as: 1) individuals belonging to a minority have common ethnic or national characteristics and 2) constitute a numerical minority (not a dominant minority) in such a political education as a state.

The concept of “indigenous people” also has no universally accepted definition, and scholars are still arguing about its content. At the same time, it is often characteristic for indigenous peoples that: 1) their representatives share common ethnic or cultural characteristics; 2) they are historically associated with a particular territory; 3) they found themselves in a non-dominant position in this territory under the influence of another, later-coming population.

As we see, in the science of international law there is still no clear system of key concepts for the right to self-determination, which, rather, speaks in favor of the theory that this right is not so much legal as political.

In international law, there are also no objective criteria that would allow separating a nation from a minority. An ethnic group that is less numerous than the ethnic group that created this state (“titular nation”) is not a “nation of a multi-ethnic state”, but an ethnic or national minority.

In this regard, in the literature of international law one can often find the statement that the national minority has no right to self-determination in the form of secession, i.e. he does not have the right to create his own state, since he already has his own national state and it is already “self-determined”. However, the problem with this statement is that the national minority in principle does not have the right to self-determination and is not a collective subject of international law.

The international community faced the problem of protecting the rights of national minorities after the end of the First World War, which was reflected in the special legal institutions of the League of Nations aimed at protecting these rights.

However, the national states in Europe, recognizing the presence of national minorities on their territory, did not particularly willingly granted them certain rights, because they feared that the consolidation of national minorities on their territory could lead to an increase in separatist sentiments and, as a result, the threat of their territorial integrity.

A classic example during this period was the active use by Hitler of the rhetoric of protecting the rights of the Sudeten Germans, which allowed him to first annex a part of Czechoslovakia and then fully occupy it.

As experience has shown, in some cases, under the pretext of protecting the rights of national minorities, the annexation of the territory of the states where these minorities live can be carried out. And since in Europe many nationalities lived in the territory of many states, in order to avoid the threat of secession, the states sought to prevent the recognition of international legal personality of national minorities. As a result, national minorities today are not recognized by subjects of international law, and when it comes to the rights of national minorities, they mean rights belonging not to national minorities as such, but to their individual representatives. In other words, the rights of national minorities are not collective, but individual. As the American lawyer Peter Malanchuk writes in this connection, “in the process of developing international law from World War II, minority rights are formulated as a category of human rights that should be exercised by an individual belonging to minorities, and not group rights inherent to a collective subject as such ".

The Commission of Lawyers, created by the League of Nations to study the situation on the Åland Islands, concluded that “positive international law does not recognize the right of national groups as such to secede from the state of which they are, by mere expression of desire”.

As Polish author Machey Perkovsky writes in this connection: “The doctrine in general is denied minorities the right to self-determination to minorities, as expressed in the reports of the special rapporteurs of the Subcommittee on the Prevention of Discrimination and Protection of Minorities to the UN Human Rights Commission. The practice of states in relation to minorities does not give grounds for including them among the subjects entitled to self-determination. On the contrary, the states, creating the legal regulation of the self-determination of nations, formulated separate decisions regarding minorities, the content of which indicates that they are about individual human rights. ”

The American international lawyer Peter Malanchuk, analyzing the content of the 27 article of the 1966 Covenant on Civil and Political Rights, which deals with the rights of ethnic, linguistic and religious minorities, concludes that “minorities, at least in principle, do not have the right to secession (in the sense of “external” self-determination) ”, and“ their right is limited to a certain form of autonomy in the structure of a given state (what is sometimes called “internal” self-determination) ”.

As the author writes: “This conclusion is confirmed by the wording of the 27 article of the Covenant on Civil and Political Rights, which provides minorities with not the right to secede, but only limited rights“ to use their culture, practice their religion and perform its rites, and use their native language ". Minorities themselves are not recognized as subjects of international law. Even the rights in Article 27 are formulated as individual rights, the rights of members that belong to minorities, and not as a collective right. ”

What conclusions follow from the above analysis of the history and content of the right of peoples (nations) to self-determination in relation to the current situation in Crimea?

First of all, the Russian national (ethnic) minority living on the territory of Crimea is not a separate nation or nation, but a national minority, which does not have a collective right to self-determination, but certain individual rights.

Secondly, in any case, even if we recognize the right to self-determination for such a minority, even then this right does not include the right to secession (secession) and the creation of its own independent state.

However, it should be emphasized that, in contrast to the “Russian-speaking minority” living in Crimea, the Crimean Tatar people with the status of an indigenous people have an indisputable right to self-determination. So, the UN Declaration on the Rights of Indigenous Peoples of the 2007 of the Year confirms the right of indigenous peoples to self-determination. It is noteworthy that this Declaration speaks of the collective rights of indigenous peoples, which puts these peoples at a higher level of legal protection than national (ethnic) minorities, whose representatives, as most lawyers believe, do not enjoy collective rights, but individual rights. .

Article 3 of the Indigenous Peoples Declaration declares: “Indigenous peoples have the right to self-determination. By virtue of this right, they freely establish their political status and freely carry out their economic, social and cultural development. ”

Article 4 of the Declaration states: “Indigenous peoples, in the exercise of their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means of financing their autonomous functions.”

It is also important that Article 46 of the Declaration quite clearly stipulates: “Nothing in this Declaration can be interpreted as implying any right of any state, nation, group of individuals or individual to engage in any activity or perform any actions in violation of the United Nations Charter or be regarded as authorizing or encouraging any actions that would lead to the dismemberment or partial or total violation of the territorial integrity and political unity of sovereign and of Independent States. "

As we see, even when it comes to the rights of indigenous peoples, including their right to self-determination, the international community still strives to put the principle of territorial integrity and the principle of political unity of sovereign states above the principle of self-determination.

Thus, a summary conclusion can be formulated as follows: The “self-determination” of the inhabitants of the Crimea, who voted at the “referendum” organized by the separatists, not only blatantly violates the right of Ukraine, but also is in sharp contradiction with the principles of modern international law; As for the self-determination of the Crimean Tatar people, it fully complies with the requirements of international law to the extent that it does not violate the territorial integrity of Ukraine.

It seems that if Russia really believed that “self-determination of the people of Crimea” does not violate international law, then without hesitation, it would agree to the consideration of this issue in the International Court of Justice. However, in all likelihood, Russian politicians and lawyers, including members of the Constitutional Court, are well aware that, having annexed Crimea, Russia has committed an international crime and is in panic afraid of the issue to be examined by international judicial bodies.

In conclusion, I would like to express regret that modern Russian lawyers actually abandoned an objective scientific approach to determining the right to self-determination in the context of solving the problem of Crimea and sank to an unprincipled propaganda apology of annexing Crimea.

Author: Alexander Merezhko, Doctor of Law, Professor, Head of the Law Department of Kiev National Linguistic University, Professor of the Krakow Academy named after Andrzej Modzewski.