Russian and Eurasian Studies Master Thesis
The Crimean Crisis: Pertinent Questions of International Law
Name: Jan Eijsbouts
1. Introduction 3
2. Brief historical background of the Crimean Crisis 6
3. The annexation of Crimea: questions of fundamental principles of international law 8
3.1. Reaction of the International community: sanctions 8
3.2. Reaction of the international community: a call for international justice 9
3.3. Pertinent questions of international law 12
4. The (il)legality of Crimea's unilateral declaration of independence 13
4.1. Introduction 13
4.2. Declarations of independence in international law 13
4.3. The illegality of unilateral declaration of independence under international law 16
4.3.1. Advisory opinion: accordance with international law of the unilateral declaration of independence in respect of Kosovo 16
4.3.2. The Opinion of the International Court of Justice 17
4.4. Kosovo advisory opinion: a missed opportunity for the annexation of Crimean Peninsula? 18
4.5. Kosovo advisory opinion: case closed for Crimea's declaration of independence? 22
4.6. Preliminary conclusion 24
5. The (il)legality of Crimea's unilateral secession from Ukraine. 24
5.1. The right to self-determination 25
5.2. Self-determination: a general right to independence/unilateral secession? 27
5.3. Self-determination: a qualified right to remedial secession? 32
5.4. Was Crimea entitled by international law to unilaterally secede from Ukraine? 36
5.5. Is Crimea's unilateral secession from Ukraine in accordance with international law? 38
6. Conclusion 41
7. Bibliography 45
1. Introduction
On the 21st of November 2013, Viktor Yanukovych, then the president of Ukraine, suddenly withdrew from the preliminary procedures of signing the Treaty of Association, effectively suspending rapprochement to the European Union. This withdrawal was met with massive and continuous protests across the country that came to be known as the Euromaidan protests.
These protest culminated into the Russian intervention of military personnel of Crimea and ultimately in the annexation of the Crimean Peninsula. On march the 6th, the Crimean parliament unilaterally declared itself independent, announced that Crimea would separate itself from Ukraine and that it would join the Russian Federation. Ten days later, on March the 16th, a referendum was organized by Crimean authorities and subsequently passed with a recorded overwhelmingly positive result of 96,6 percent of the Crimean population speaking out in favour of Crimea's secession from Ukraine and its absorption into the Russian Federation. On march the 18th, the 'return' of Crimea to the Russian Federation was formalized by the Russian head of state Vladimir Putin and celebrated as a national and historical triumph.
The annexation of Crimea by the Russian Federation was met with widespread disapproval and condemnation from the international community that largely remained supportive of Ukraine's sovereignty and territorial integrity. In response to the events that resulted in the secession of the Crimean Peninsula, a coalition of governments and international organisations, led by the United States and European Union, imposed sanctions against several Russian and Crimean individuals and businesses. Additionally, besides political and economic sanctions imposed on Russia as a response to the annexation of Crimea and the ongoing struggle in the northern region of Ukraine, increasing calls for justice began to rise from the international community, claiming that the declaration of independence issued by the Crimean authorities and subsequently its secession from Ukraine violated the sovereignty and territorial integrity of Ukraine and therefore constitutes a breach of fundamental principles of international law.
Russia and the Crimean authorities on the other hand, categorically deny that the unilateral
declaration of independence is inconsistent with the principles of international law, pointing to
the advisory opinion on the status of Kosovo by the International Court of Justice of the United
nations from July 22, 2010, which confirmed that declarations of independence do not violate
any principle of international law.
Furthermore, the Russian authorities held that the unilateral secession of the Crimean Peninsula from Ukraine did not constitute a breach with international law. Russian president Vladimir Putin contended that the people of Crimea, through unilateral secession, had exercised their right of self-determination. Referring to the United Nations Charter, which speaks of the rights of nations to self-determination, Putin claimed that in strict compliance with international law and democratic procedure, without outside interference and through a free referendum, the people of Crimea have fulfilled what is enshrined in the Charter of the United Nations and a great number of fundamental international legal documents, their right to self-determination.
Additionally, besides relying on the principle of self-determinations, the Russians also seem to implicitly invoke the doctrine of remedial secession, which is regarded as a principle that offers a right to unilateral secession in case of serious injustices against a people as a justification for Crimea's unilateral secession from Ukraine.
The events that led to the annexation of Crimea by the Russian federation and the arguments made by both the Crimean and the Russian authorities in their attempts to justify the events, give rise to various questions of international law. The question rises, whether the conclusion of the International Court of Justice in its Kosovo advisory opinion, according to which declarations of independence do not violate a rule of positive international law, can in fact be accepted. In other words, was the unilateral declaration of independence, issued by the Crimean authorities consistent with international law?
Furthermore, it appears that the Russian Federation is convinced that the authorities of Crimea,
by declaring themselves independent from Ukraine, have rightfully exercised their fundamental
right to self-determination as granted to them by the Charter of the United Nations, and that a
successful invocation of this principle equals or leads to a right to unilateral secession from
Ukraine. Additionally, and perhaps alternatively, the Russian Federation seems to rely on the
doctrine of remedial secession, a doctrine that is said to encompass the right to unilateral
secession in case of serious injustices suffered by a people. As it will be explained, however,
the legal accuracy of this doctrine remains highly questionable. The question therefore rises,
whether or not the current legal framework of international law provides the ability for Crimean
authorities to rely on their right to self-determination, and additionally whether an appeal may
be made to the doctrine of remedial secession in their justification to Crimea's unilateral
secession from Ukraine.
In this thesis an answer to these pressing questions will be sought. Firstly, a brief historical
background of the Crimean crisis will be presented. The accusations of prominent western
leaders and conversely, the vehement pleas of opposition from both Russian and Crimean
authorities will be placed against each other. Continuing, an answer shall first be sought for
the question whether or not declarations of independence, in general, are in accordance with
international law, and more specific, if the declaration of independence by the Crimean
authorities constitutes an illegal international act. Secondly, it will be examined if Crimea can
successfully invoke the right to self-determination to justify breaking away from Ukraine, and
more alternatively, if Crimea could be granted a right to remedial secession. Finally, a
conclusion will be formulated.
2. Brief historical background of the Crimean Crisis.
From the early 1990s onwards, the European Union sought to establish cooperative relationships with former Soviet countries. The independence of Ukraine, officially proclaimed on the 24th of August 1991 by the Communist Supreme Soviet of Ukraine, presented an opportune occasion for the European Union to pursue cooperation and rapprochement with Ukraine. In 1994 the Partnership and Co-operation Agreement (PCA) between the EU and Ukraine was signed. It laid the legal framework for economic co-operation between the two parties, promoting trade, investment and economic relations, and sought to foster Ukraine's participation into the world economy.
1The PCA also had political implications. An important objective of the agreement was to establish the groundwork for political dialogue between the European Union and Ukraine that allowed for the development of close political relations and the consolidation of democratic institutions in Ukraine.
2Despite these political objectives however, there seemed to be little room for discussion. Annual meetings between the EU-troika and the Ukrainian government yielded little to no results for the establishment of political relations and the atmosphere between the two remained cold. In 2008 the PSA formally expired.
In September 2008 it was announced that negotiations had started between the European Union and Ukraine for entering into the so called "Association Agreement"
3, which could be seen as the successor to the Partnership and Co-operation Agreement. Like the former PCA, the Association Agreement aimed to strengthen Ukraine's political link with the EU as well as to foster economic integration within the European Union. By becoming a party to the agreement with the European Union, Ukraine would commit to economic, judicial and financial reforms, effectively aligning its policies and legislation with the goals and objectives of the European Union.
4Moreover, the Association Agreement was by many regarded as a precursor for future membership of the European Union. This wasn't without a good reason, since the European Parliament previously declared in a resolution that it would support opportunities for Ukraine to gain European membership and join the member states in the European Union.
5
1 PCA with Ukraine Enters into Force, European Commission DG 1A Press Release, IP/98/198 (27.2.1998).
2 Ibid.
3 Association Agreement between the European Union and its Member States, of the one part, and Ukraine of the other part, OJ, 2014, L 161/3.
4 Ibid, article 1.
5 European Parliament resolution on the results of the European elections, texts adopted - Thursday, 13 January 2005 - P6_TA(2005)0009, paragraph 14.
On 21 November 2013, the Ukrainian government, led by Viktor Yanukovych, abruptly suspended final preparations for the signing of the Ukraine-European Union Association Agreement with the European Union, effectively moving Ukraine further from European and Western integration and closer to Russia. The decision of Yanukovych to withdraw from the agreement so suddenly and in the final stage of the negotiations, was met with massive and continuous pro-EU protests across the country, and developed into what is known today as the Euromaidan. On the first eve of December, a whopping amount of over 300.000 protesters took to the streets of Kiev to demonstrate their anger and dissatisfaction at Ukraine's sudden withdrawal from the agreement. The Ukrainian government initially seemed unconcerned by the protests, expecting it to fade over time. However, when the mass protests and the occupation of the Maidan square in central Kiev didn't seem to die down, the Ukrainian government resorted to more repressive measures and deployed special forces to clear the square from protestors. The repressive action by the Ukrainian authorities fuelled the outrage of the protesters even more, causing the eruption of riots and government crackdown, resulting in violence and casualties and eventually, culminated into the political collapse of the Ukraine government and subsequently the flight of the Viktor Yanukovych to Russia.
The Euromaidan revolution and subsequently, the collapse of the Ukrainian government, had a major impact on the Crimean population. Being largely dependent on Russia for the successful course of traffic and trade, and with an ethnic Russian majority populating the peninsula, the Crimean authorities had historically always leaned towards Russia and consistently supported the pro-Russian stance of president Viktor Yanukovych. The collapse of his regime and his exile to Russia, along with the instalment of a temporary pro-European government and the approval of a bill that would ban Russian as one of the official languages in Ukraine, sparked unrest under the Crimean population as calls for independence started to rise. Amid the increasing secessionist demands and the political instability and uncertainty that followed the collapse of the Ukrainian Government, Russia saw its opportunity to make a move onto the Crimean Peninsula.
On February 28, 2014, unidentifiable, highly organized mercenaries, later confirmed to be
Russian special forces, appeared in Simferopol, Sevastopol and other cities on the peninsula
and occupied strategic locations such as airports and military bases. In response, Ukraine
mobilized its army and called for help, seeking aid and condemnation from the international
community. On march the 6th, the Crimean parliament declared by decree that Crimea would
separate itself from Ukraine. This unilateral declaration of independence would only turn out to be a transitional phase. Ten days later, on march the 16th, a referendum was hastily organized by Crimean authorities and subsequently passed with an recorded overwhelmingly positive result of 96,6 percent of the Crimean population speaking out in favour of Crimea's secession from Ukraine and subsequently its accession to the Russian federation. On march the 18th, the Crimean authorities signed an accession agreement with the Russian Federation, thereby formalizing their union. On the same day, president Vladimir Putin addressed the State Duma deputies, Federal Council members, heads of Russian regions and civil society representatives in the Kremlin. In its address, Putin emphasized the historical inseparability between Russia and Crimea and heralded the "reunion" the of Crimea as a pivotal moment in Russian modern history.
63. The annexation of Crimea: questions of fundamental principles of international law.
3.1 Reaction of the international community: sanctions
The annexation of Crimea by the Russian Federation was met with widespread disapproval and condemnation from the international community that largely remained supportive of Ukraine's sovereignty and territorial integrity. In response to the annexation, a coalition of governments and international organisations, led by the United States and European Union, imposed sanctions against several Russian and Crimean individuals and businesses in what seemed to be a concerted effort. On the 6th of march, a day after the unilateral declaration of independence by the Crimean parliament, both the European Union and the United States announced that it would impose sanctions against Russia. American president Barack Obama signed an executive order declaring a national emergency in Ukraine that warranted the imposition of sanctions, including travel bans and the freezing of assets against individuals who had asserted governmental authority in the Crimean region without the authorization of the Ukrainian government, claiming that the actions by the Crimean authorities undermined the democratic processes and institutions in Ukraine. The European Union suspended consultations with Russia on visa-free movement, warning that if Russia would not enter into negotiations with the newly elected Ukrainian government, further sanctions would follow. On the 17th march, a day after the secession from Ukraine was confirmed by the referendum that was held by the Crimean government, the European Union took further action: several Russian politicians,
6 Putin, V. (2014). Address by president of the Russian Federation. President of Russia, 18(3). Available at:
http://eng.kremlin.ru/news/6889.
high-ranking military personnel and several Crimean politicians were blacklisted, their European bank accounts frozen and they were no longer allowed to enter the EU.
Eventually, as the unrest expanded into the Eastern parts of Ukraine, escalating into the military conflict between pro-Russian separatists and the Ukrainian army in the Donbass region, the scope of the sanctions increased. By the end of July, both the United States and the European Union had introduced a series of economic sanctions, concerning both the inclusion of more names of Russian individuals and business to the blacklists as well as the addition of severe economic sanctions that to this date continue to be place.
3.2 Reaction of the international community: a call for international justice
In addition to the political and economic sanctions that were imposed against Russia as a response to the annexation of Crimea and the ongoing struggle in the northern region of Ukraine, an increasing calls for justice began to rise from the international community, claiming that the annexation of Crimea violates the sovereignty and territorial integrity of Ukraine and therefore constitutes a breach of fundamental principles of international law.
In a statement made by US president Barack Obama on the 6th of March 2014, Obama stated that "the proposed referendum on the future of Crimea violates the Ukrainian constitution and international law"
7, adding that the United States and the international community believed that borders cannot "be redrawn over the heads of democratic leaders".
8Similarly condemning the events that led to the annexation of the Crimean peninsula, Angela Merkel stated that it is her firm opinion that the declaration of independence by the Supreme National Court of Crimea, as well as the absorption of Crimea into the Russian Federation is against fundamental principles of international law, stressing that international organisations, including the United Nations, the European Union and the Organisation for Security and Cooperation in Europe shared that view.
9
7 Terbush, J. (2014). 'Obama on Ukraine: 'We are well beyond the days where borders can be redrawn over the heads of democratic leaders', The Week, 6 March. Available at: https://theweek.com/speedreads/456857 /Obama- ukraine-are-well-beyond-days-where-borders-redrawn-over-heads-democratic-leaders.
8 CBNC with Reuters (2014). 'Obama Proposed Crimea referendum violates international law', CNBC News, March 6. Available at: https://www.cnbc.com/2014/03/06/president-obama-to-make-statement-on-ukraine-at- 105-pm-et.html.
9 The Local. (2014). 'Merkel: Crimea grab 'against international law', The Local DE, 18 March. Available at:
https://www.thelocal.de/20140318/merkel-crimea-grab-against-international-law/?amp.
Russia and the Crimean authorities on the other hand, categorically deny that the unilateral declaration of independence is inconsistent with the principles of international law and that the secession of Crimea from Ukraine does not constitute a breach with international law. In a statement annexed to the declaration of independence, the Supreme National Court of Crimea stated that it was acting "in accordance with the principles of international law laid in the UN charter and many other international documents and that it considered the advisory opinion on the status of Kosovo by the International Court of Justice of the United nations from July 22, 2010,
10which confirmed, according to the Crimean and Russian authorities, that a unilateral declaration of independence taken by a part of a state would not violate any principle of international law, as can by read in the preamble of the decision taken by the Crimean Court:
"We, the members of the parliament of the Autonomous Republic of Crimea and the Sevastopol City Council, with regard to the Charter of the United Nations and a whole range of other international documents and taking into consideration the confirmation of the status of Kosovo by the United Nations International Court of Justice on July 22, 2010, which says that [a]
unilateral declaration of independence by a part of the country does not violate any international norms, make this decision jointly."
11A similar contention can be found in the State Duma address of Russian president Putin, held on 18 march 2014, in which Putin verbally refers to the dictum of the International Court of Justice, stating that that 'no general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence, continuing that general international law contained no prohibition on declarations of independence.
12Furthermore, Putin also addressed the fact that the United States expressed itself very clearly on this matter in a written statement submitted to the International Court of Justice in the Kosovo case, which stated that declarations of independence may and often do violate domestic legislation.
13However, as the written statement continues, this does not make them de facto violations of international law.
14
10 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 22 July 2010
11 Russia Today, (2014). 'Crimea parliament declares independence from Ukraine ahead of referendum'. Russian Today, 11 march. Available at: https://www.rt.com/news/crimea-parliament-independence-ukraine-086/.
12 Putin, V. (2014). Address by president of the Russian Federation. President of Russia, 18(3). Available at:
http://eng.kremlin.ru/news/6889.
13 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 22 July 2010, p.6.
14Idem, paragraph 79.
In further attempts to justify Crimea's secession from Ukraine, Russian president Vladimir Putin also contended that the people of Crimea by way of a referendum had exercised their right to self-determination, referring to the United Nations Charter, which speaks of the rights of nations to self-determination.
15During plenary sessions in the UN General Assembly, the Russian representatives also presented this view, claiming that:
"in strict compliance with international law and democratic procedure, without outside interference and through a free referendum the people of Crimea have fulfilled what is enshrined in the Charter of the United Nations and a great number of fundamental international legal documents, their right to self-determination."
16Besides relying on the principle of self-determinations, the Russians also seem to aim to the doctrine of remedial secession, which is regarded as a principle that offers a right to unilateral secession in case of serious injustices against a people. Touching upon these alleged injustices which the population of Crimea would have suffered according to the Russian Federation, Putin stressed that Russia relied on Ukraine 'to remain our good neighbour', hoping that Russian citizens and Russian speakers in Ukraine, especially in the southeast and Crimea, would live in a friendly democratic and civilised state, but went on to point out that this was not how the situation developed, stating that 'time and time again, attempts were made to deprive Russians of their historical memory, even of their language and to subject them [the Russians] to forced assimilation'.
17Also implicitly relying on the supposedly justified exercise of Crimea's right to remedial secession, the representative of the Russian Federation Vitaly Churkin claimed in the Security Council that 'a situation of ongoing threats of violence by ultranationalists against the security, lives and legitimate interests of Russians and all Russian-speaking peoples' would warrant the establishment of 'self-defence brigades', allowing Russian forces to be deployed in the territory of Ukraine until the civic and political situation there had been normalized.
18Churkin then
15 Putin, V. (2014). Address by president of the Russian Federation. President of Russia, 18(3). Available at:
http://eng.kremlin.ru/news/6889.
16 Public meeting on the situation in Ukraine with a briefing by the Assistant Secretary-General for Human Rights and Deputy Secretary-General, UN Security Council, UN Doc. S/PV.7144, 19 March 2014, p. 8.
17 Putin, V. (2014). Address by president of the Russian Federation. President of Russia, 18(3). Available at:
http://eng.kremlin.ru/news/6889.
18 Russian representative Vitaly Churkin during the public meeting on the situation in Ukraine with a briefing by Assistant Secretary-General for Political Affairs, UN Security Council, UN Doc. S/PV.7125, 3 March 2015, p. 3.
stressed that Russia's aid in realising Crimea's right to self-determination was an issue of defending their citizens and compatriots, 'as well as the most important human right - the right to life'.
193.3 Pertinent questions of international law
The events that led to the annexation of Crimea by the Russian federation and the arguments made by both the Crimean and the Russian authorities in their attempts to justify the events, give rise to various questions of international law. From the arguments put forward by the Crimean and Russian authorities, it becomes apparent that their representatives see themselves supported by the advisory opinion of the International Court of Justice on the status of Kosovo in their claims that unilateral declarations of independence do not violate international law. The question rises, however, whether the advisory opinion of the International Court of Justice on the status of Kosovo, can be relied upon in justifying the unilateral declaration of independence.
In other words, the question rises if the unilateral declaration of independence, issued by the Crimean authorities was in accordance with international law? This question is becoming even more pressing, now that several western leaders have declared Crimea's unilateral declaration of independence as being inconsistent with international law.
Furthermore, it appears that the Russian Federation is convinced that the authorities of Crimea, by declaring themselves independent from Ukraine, have rightfully exercised their fundamental right to self-determination as granted to them by the Charter of the United Nations, and that a successful invocation of this principle equals or leads to a right to unilateral secession from Ukraine. Additionally, and perhaps alternatively, the Russian Federation seems to rely on the doctrine of remedial secession, a doctrine that is said to encompass the right to unilateral secession in case of serious injustices suffered by a people. As it will be explained, however, the legal accuracy of this doctrine remains highly questionable. The question therefore rises, whether or not the current legal framework of international law provides the ability for Crimean authorities to rely on their right to self-determination, and additionally whether an appeal may be made to the doctrine of remedial secession in their justification to Crimea's unilateral secession from Ukraine.
19 Russian representative Vitaly Churkin during the public meeting on the situation in Ukraine with a briefing by Assistant Secretary-General for Political Affairs, UN Security Council, UN Doc. S/PV.7125, 3 March 2015, p. 4.
In the following chapters, an answer will be sought to these pertinent questions of international law, beginning with the question whether or not Crimea's unilateral declaration of independence is consistent with international law.
4. The (il)legality of Crimea's unilateral declaration of independence 4.1 Introduction
As has been pointed out above, several western leaders have claimed that the unilateral declaration of independence issued by the Supreme National Court of Crimea is inconsistent with international law. Crimean and Russian authorities, however, deny that Crimea's unilateral declaration of independence constitutes a breach with fundamental principles of international law, pointing to the advisory opinion of the International Court of Justice on the status of Kosovo in support for their position. This gives rise to an important question: are declarations of independence compatible with the current principles of international law and do they allow Crimea, an autonomous province of Ukraine, to unilaterally declare itself independent? This sections aims to answer this question.
4.2 Declarations of independence in international law.
The legal status of declarations of independence is a contested topic in international law. On the one hand, it is held by scholars that declarations of independence are legally irrelevant and do not fall within the scope of international law.
20Following this interpretation, declarations of independence are said to be no more than ink on a paper, a written or spoken act, devoid of any international legal effect. International law only then comes in in the picture when states actively pursue the implementation of the declared independence, namely when the effect of a declaration of independence actually has consequences for the territory of a state.
21By merely declaring oneself independent, it could hardly be argued this has consequences for the territory of a state, for one merely intends to alter the territory of a state without actually doing so. This means that before the effects of a declaration of independence effectively manifest themselves as a change of the territory of a state, this declaration of independence is thought to be legally irrelevant and thus cannot be a legal or illegal act under international law.
20 See the number of pleadings before the ICJ in the Kosovo Advisory Opinion. International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Public sitting held on Friday 4 December 2009, CR 2009/28, 27 [31] (argument on behalf of Burundi; Ibid, CR 2009/32, 47 [6] {argument on behalf of the United Kingdom); Ibid, CR 2009/30, 30 [29] (argument on behalf of the United States.
21 See Hannum, H. (2011). The advisory opinion on Kosovo: an opportunity lost, or a poisoned chalice refused. LJIL, 24, 155.
On the other hand, however, it is said that declarations of independence do hold legal relevance and that they definitely fall within the scope of international law. This argument is supported by the practice in which a declaration of independence, by itself, can effectively change the legal status of the territory whose independence it intends to declare.
22Whether declarations of independence, by themselves, can bring about this change, or whether it just simply intends to do so, depends on the interpretation that has been given to the concept of state-creation.
23In short, with regards to this process, it is held that when a declaration of independence is consensual, in the sense that the parent state gives their approval for secession, an entity may become a new state at the moment of issuing the declaration of independence. This interpretation of state creation is supported by the generally accepted principle in international law that recognition constitutes a declaratory act instead of a constitutive.
24The mere act of declaring independence, sui generis, is not recognised as the creation of a new state, however, this notion immediately ceases to become a problem when a declaration of independence is approved/uncontested by the parent state. Therefore, since recognition is not constitutive, but declaratory - and therefore not required for an entity to become a new state - it seems to be doctrinally accepted that a declaration may instantly change the legal status of a territory and therefore fall within the scope of international law.
The legal relevance of a declaration of independence in this regard is reflected in the secession of Montenegro from Serbia. In 2006, Montenegro declared independence from Serbia by invoking article 60 of the Serbian Constitution, which provided a clear cut legal framework for secession, dictating that 'member states have the right to begin the process of a change of the status of the state or to secede from the State Union of Serbia and Montenegro' under certain circumstances'.
25This case serves as clear example of a declaration of independence which, by itself, created a new state, for in this particular case, Montenegro met the requirements to be qualified as a state, and more importantly, no challenging claim for the breach of the principle of territorial integrity was made by the parent state. The Montenegrin declaration of independence, declared by the Montenegrin Parliament on 3 June 2006, therefore effectively, sui generis, created a new state, and because of this, was not merely ink on a paper devoid of
22 Vidmar, J. (2012). Conceptualizing Declarations of Independence in International Law. Oxford Journal of Legal Studies, 32(1), p. 157.
23 Ibid, p. 157.
24 See Harris, D. J., & Sivakumaran, S. (2004). Cases and materials on international law (Vol. 134). London:
Sweet & Maxwell.
25 Article 60 of the Constitution of the Sate Union of Serbia and Montenegro, (2003).
any legal effect, but a recognised instrument with immediate domestic and international legal effect.
Sometimes, however, a declaration of independence will not instantly create a new state, or it may not lead to a state creation at all, yet it may also fall within the scope of international law.
26This is especially said to be the case with declarations of independence with a unilateral character, meaning that the pursuit of independence by an entity is not approved by a state.
Unlike declarations of independence like those in the case of the Montenegrin secession, unilateral declarations of independence don't have international legal relevancy on the basis that they may instantly change the territory of a state - through mutual consensus - but because they are said to be inconsistent with fundamental principles of International law, thereby making them a matter of dispute that transcend domestic legal systems: it can be argued that an entity who declares itself independent without the consent of the parent state is in breach with the fundamental principle of territorial integrity of a state, which protects the parent state of entities who seek independence from a non-compliant state.
27The possible outcome of illegality, i.e. a violation of fundamental international principles has important consequences in the field of international responsibility, for example the obligation of states and other actors recognized by international law not to recognize a situation created by a violation of a fundamental rule of international law.
28 Whether in fact unilateral declarations of independence may or may notconstitute a breach of international law will be covered below, but the fact that declarations of independence of a unilateral character can give rise to these fundamental question of international law, shows that declarations of independence can be more than mere words on a paper and can become a subject-matter of dispute whose relevance may have important consequences for international law and practice.
Having established that declarations of independence certainly hold legal relevance, at least in some cases, and that they can fall within the scope of international law, the question then rises how these declarations of independences ought to be regulated, and under what circumstances
26 Vidmar, J. (2012). Conceptualizing Declarations of Independence in International Law. Oxford Journal of Legal Studies, 32(1), p. 158.
27 See Kohen, M. (2020). Chapter 7, Self-Determination. In Viñuales, J. E. (Ed.). (2020). The UN Friendly Relations Declaration at 50: An Assessment of the Fundamental Principles of International Law. Cambridge University Press, p. 145.
28 Christakis, T. (2006). Chapitre VII. L’obligation De Non-reconnaissance Des Situations Cres Par Le Recours Illicite La Force Ou D’autres Actes Enfreignant Des Règles Fondamentales. In in Tomuschat, C., & Thouvenin, J. M. (Eds.). (2006). The Fundamental Rules of the International Legal Order:" jus Cogens" and Obligations"
erga Omnes":[Berlin Workshop]. Brill.
they can become an illegal act under international law. This question will be discussed in the next section.
4.3. The illegality of unilateral declarations of independence under international law.
The question whether or not declarations of independence are permitted under international law and how they should be regulated mainly applies to declarations of independence with a unilateral character. This stems from the fact that unilateral declarations are declared by entities who seek secession without the consent of its parent State. Declarations of independence that are approved by the parent-state do not, in principle, constitute an urgent dispute between states.
This section therefore focuses mainly on the question whether unilateral declarations of independence can be illegal under international law.
4.3.1. Advisory Opinion: Accordance with international law of the Unilateral Declaration of Independence in Respect of Kosovo.
They can be found all over the world: population groups who want to separate themselves from the state to which they belong and who want to establish their own independent and sovereign state. From the Balkans to the Caucasus and from the Horn of Africa to the Himalayas. At times, several of these separatist movements have unilaterally declared themselves independent in their pursuit of becoming a sovereign and independent state.
29As was the case with autonomous region of Kosovo who issued a declaration of independence. On February 17, 2008 The provisional government of Kosovo declared themselves independent with the famous words 'we, the democratically elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state'.
30The Serbian government disputed the legality of the declaration and initiated a resolution of the UN General Assembly to request an opinion from the International Court of Justice to gather international validation and support for its stance.
This eventually led to the adoption of the following question that was submitted to the Court:
Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law? On 22 July 2010, the Court submitted its advisory opinion on this question. This advisory opinion by the ICJ was highly anticipated, not only by those who were concerned with the direction that the self-proclaimed Republic of
29 For an overview of secessionist movements and attempts at secession in the 20th and 21st centurie, see Pavkovic, A., & Radan, P. (2016). Creating new states: theory and practice of secession. Routledge, p. 257-259.
30 For the full text, see Ministry of Foreign Affairs of Kosovo, 'Kosovo Declaration of Independence'. Available at: www.mfa-ks.net/repository/docs/Dek_Pav_e.pdf.
Kosovo was heading in, but also by the international community and by the international law experts. What made this advisory opinion so eagerly expected, was the fact that the International Court of Justice, the highest judicial organ of the United Nation, for the first time in history, submitted an advisory opinion on the legality of unilateral declarations of independence outside the context of decolonization.
4.3.2. The opinion of the International Court of Justice
With ten votes to four, the Court concluded that Kosovo's declaration of independence 'did not violate any applicable rule of international law'
31. To reach that conclusion, the Court first had to overcome some hurdles with regards to its jurisdiction. During the proceedings, a number of states had argued that the General Assembly's request was not within its competence under the UN Charter, as matters related to the maintenance of international peace and security are primarily the concern of the UN Security Council. It was also argued that the question before the Court was not a legal, but a political question. After a lengthy and formal review, the Court unanimously concluded that it did have jurisdiction in the present case and that there were no compelling reasons not to comply with the request to issue an opinion.
32Subsequently, the Court decided to focus on the scope and content of the legal question raised by the General Assembly. The court considered that:
"[t]he question is narrow and specific; it asks for the Court's opinion on whether or not the declaration of independence is in accordance with international law.
33With regard to the content of the legal question submitted by the General Assembly, the Court first examined the legality of declarations of independence under general international law. It noted that declarations of independence have been around for centuries and have only in some cases led to recognition and actual independence. Yet, state practice did not suggest that such statements were in violation of international law. Moreover, the right of self-determination developed into a right of independence for colonial peoples during the second half of the twentieth century. The exercise of this right has resulted in a large number of new states, but new states have also been created outside the context of decolonization. In this context, too,
31 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 22 July 2010, paragraph 122.
32 Ibid, paragraph 29-48.
33 Ibid, paragraph 51.
state practice does not point to a prohibition on declarations of independence under international law, the Court held.
34Several states had argued during the proceedings that the principle of territorial integrity includes an implicit prohibition on unilateral declarations of independence.
This principle, that seeks to protects the parent state of entities who seek independence from it, is said to be deeply rooted in international law and is incorporated in Article 2, paragraph 4 of the UN Charter and in other international instruments. However, according to the Court, the principle of territorial integrity applies only to relations between states. In the present case, Serbia's territorial integrity was not affected, as Kosovo's independence was proclaimed by a non-state entity located within state borders.
35Some states argued that the Security Council has condemned declarations of independence in the past, but the Court noted in this regard that this had nothing to do with the unilateral nature of these declarations. In the cases of, for example, of the declaration of independence issued by the racist government of Southern Rhodesia and that of Northern Cyprus, the Court noted that the illegality attached to these declarations of independence stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)
36. Finally, a number of states argued that the Kosovars could claim a modern interpretation of the right to self-determination and consequently a right to secede from Serbia on the basis of systematic oppression of the population of Kosovo. However, the Court ignored this argument. It took the view that these issues did not fall under the legal question that was submitted by the court, referring to what it said earlier about the scope of the question, and merely noted that the opinions on this subject vary greatly within the international community.
37General international law therefore does not prohibit declarations of independence, the Court concluded.
4.4 Kosovo Advisory Opinion: a missed opportunity for the annexation of the Crimean Peninsula?
The view of the International Court of Justice is crystal clear: there exists no rule of general international law that prohibits unilateral declarations of independence. With this conclusion, the Court does not in principle say anything new. It is well known that international law is more
34 Ibid, paragraph 79.
35 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 22 July 2010, paragraph 80.
36 Ibid, paragraph 81.
37 Ibid, paragraph 82-83.
or less neutral about declarations of independence: it is neither explicitly prohibited nor explicitly permitted. This means one thing for certain: the Crimean authorities and President Putin are correct in their argument that the International Court of Justice has indeed ruled in its advisory opinion on Kosovo that there is no rule of international law that prohibits substate actors from unilaterally declaring their independence. Contrary to what Western leaders have claimed, it seems therefore that Crimea's unilateral declaration of independence does not constitute a violation of general international law.
However, the issuing of such unilateral declaration of independence, while above all mainly a political act, can nevertheless have far reaching consequences when placed in the context of the secession of an entity from its parent state and the creation of a new independent state. The Court's conclusion in the Kosovo advisory opinion could give the impression that separatist movements can act without restrain, or even that international law is completely neutral is this field. According to judge Skotnikov, the advisory opinion could from this point of view have an inflammatory effect.
38In part, this is due to the fact that the Court did not comment on whether a unilateral declaration of independence issued by a non-state entity can actually lead to secession from the parent state and the emergence of a new sovereign state and if international law permits this. It merely noted that in some cases such declarations led to the creation of a new state, while in other cases, such declaration of independence were unsuccessful.
39The court also explicitly did not discuss the content and applicability of the right of peoples to self-determination and the controversial question whether international law recognizes a right to unilateral secession due to systematic oppression of the population and fundamental human rights violations (known as the right to remedial secession). This is notable, since these questions are inextricably linked to the question posed to the Court. After all, Kosovo invoked the right of self-determination of its people and the declaration of independence of 17 February 2008 expressed an attempt to secede from Serbia.
40
38 International Court of Justice, Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, 22 July 2010, Dissenting opinion of Judge Skotnivkov, ICJ Reports 2011, 22 July 2010, paragraph 17.
39 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 22 July 2010, paragraph 80.
40 see Ministry of Foreign Affairs of Kosovo, 'Kosovo Declaration of Independence'. Available at: www.mfa- ks.net/repository/docs/Dek_Pav_e.pdf.
It is therefore not surprising that the conclusion of the Court, namely that unilateral declarations of independence do not come into conflict with any existing rule of general international law, has been received with mixed feelings. Some states have welcomed the opinion of the Court, calling for Kosovo to be recognized as an independent state. Regions such as Abkhazia, Nagorno-Karabakh and Transnistria see the advisory opinion as an important event that provides legitimacy for other entities with separatist ambitions.
41Other states, such as Serbia and, interestingly, Russia, have criticised the ruling, emphasizing that they will never recognize Kosovo's unilaterally declared independence.
42Legal scholars have generally taken a critical stance on the ruling of the International Court of Justice. This criticism is not so much directed at the final conclusion of the Court, as it is directed at the way the Court has conducted its legal reasoning with regards to the question submitted by the General Assembly. According to Christakis, it was the resolve of the Court to answer the question posed by the General Assembly in the narrowest way possible.
43The General Assembly, on behalf of Serbia who drafted the question, asked whether the declaration of independence was 'in accordance with' international law. The Court considered that the answer to this question turned on whether or not existing general international law prohibited declarations of independence. Many of the States participating in the proceedings, however, tried to convince the Court that the question submitted to the Court not only touches on whether or not international law provides the existence of a rule that prohibits declarations of independence or, but also concerns the question about the existence of a rule that authorises it.
The Court did not follow this path.
It could be argued that the Court could have easily broadened its approach. It has done this in the past when it has emphasized that 'a reply to a question of the kind posed in the present request may, if incomplete, be not only ineffectual but actually misleading as to the legal rules
41 See for example BBC News (2010). 'Reaction in quotes: UN legal ruling on Kosovo', BBC News, July 22.
Available at: https://www.bbc.com/new/world-europe-10733837; RadioFreeEurope/RadioLiberty (2010).
'Transdniester Hails Court Ruling on Kosovo', RadiofreeEurope/RadioLiberty, 28 July. Available at:
https://www.rferl.org/a/Transdniester_Hails_Court_Ruling_On_Kosovo/2111867.html. See also Ryngaert, C., &
So brie, S. (2011). Recognition of States: International Law or Realpolitik: The Practice of Recognition in the Wake of Kosovo, South Ossetia, and Abkhazia. LJIL, 24, 467.
42 See Samorukov, M. (2019). 'A Spoiler in the Balkans? Russia and the final solution of the Kosovo conflict', Carnegie Moscow Center, 26 November. Available at: https://carnegie.ru/2019/11/26/spoiler-in-balkans-russia- and-final-resolution-of-kosovo-conflict-pub-80429.
43 Christakis, T. (2011). The ICJ Advisory Opinion on Kosovo: has international law something to say about secession. LJIL, 24, p. 74.
applicable to the matter under consideration by the requesting organization'.
44While it is not certain to say if the Court, by not having broadened its approach, actually provided an incomplete answer that could be 'ineffectual' or even 'misleading', it could certainly have considered to do so, since there are reasons to assume that international law does not favour states unilaterally declaring independence. Had the Court for example considered the question 'whether or not international law provided the Provisional institutions of Self-government of Kosovo the right to issue a unilateral declaration of independence of Kosovo from Serbia, and whether or not in this respect international law gave Kosovo the right to unilateral secession from Serbia', the outcome could very well have been different: The Supreme Court of Canada, when asked a paraphrase of this question in respect to Quebec's secession, stated in its reference that 'international law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their parent state'.
45Similarly, the International Fact-Finding Mission on the Conflict in Georgia concluded in its report that Abkhazia was not allowed to secede from Georgia under international law, 'because the right to self-determination does not entail a right to secession'.
46In other words: the precedent existed for the Court, but the Court simply refused to explore whether international law (outside the context of decolonisation) provided a rule that gives states the right to unilaterally declare its independence in order to break away from it:
"The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act such as a unilateral declaration of independence not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The court has been asked for an opinion on the first point, not the second."47
44 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 9 July 2004, paragraph 86 where the noted that it would indicate the applicable law before advancing to establish whether rules of international law had been breached. Similarly, in International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 8 July 1996, paragraph 23 where the court said that in answering the question it must decide, taking into consideration a great corpus of international law norms available to it, what might be the relevant applicable law.
45 Reference re Secession of Quebec, Supreme Court of Canada (1998), paragraph 217.
46 Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, (2009), Vol. II, paragraph 147. Available at www.ceiig.ch.
47 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 22 July 2010, paragraph 56.
Instead, the Court (merely) ascertained whether or not the unilateral declaration of independence issued by the provisional government of Kosovo was 'in accordance' with general international law, and it concluded, rather briefly, that there existed 'no rule' of international law that prohibits states from unilaterally declaring their independence.
Authors of the Kosovar declaration of independence and many states that recognized Kosovo alike, have insistently claimed that the Kosovo declaration of independence constitutes a 'sui generis' case, emphasizing that this case is so unique that it cannot be considered in any way as a precedent for future secessionist attempts.
48However, despite these claims, the methodology of the court clearly demonstrates that the Court rejected this unique qualification of the Kosovo independence: nowhere in its advisory opinion did the Court explicitly ascribe the supposed uniqueness that several actors claimed it to have. On the contrary, the Court accepted to examine the lawfulness of the unilateral declaration of independence under general international law, demonstrating that international law cannot be waived as a matter of political discretion and convenience. This leads to the conclusion that all the court has stated about declaration of independence and their compatibility with international law certainly has a precedential effect that cannot be underestimated.
494.5. Kosovo advisory opinion: case closed for Crimea's declaration of independence?
Having examined the conclusion of the International Court of Justice in its Kosovo advisory opinion and some criticisms aimed at the Courts reasoning, the question rises, if there is no possibility at all for the international community to challenge unilateral declarations of independence? In its advisory opinion the Court seems to have accepted a framework with which possible illegality can be attached to declarations of independence, meaning that international law does not justify unilateral declarations of independence under all circumstances. Unsurprisingly, the Russian Federation, in its reference to the position of the International Court of Justice, has carefully and diligently omitted this point of view of the Court. According to the Court, declarations of independence can be incompatible with
48 See for example Republic of Kosovo (2010). 'Statement by the Foreign Minister of the Republic of Kosovo, H.E. Mr Skender Hyseni, on the ICJ Opinion of 22 July 2010' Consulate of the Republic of Kosovo in Des Moines, July 22. Available at: http://konsullata-ks.net/dm/?page=2,1; and also Philips, L. (2008), 'EU Leaders condemn Russia in shadow of Kosovo'. Euobserver, 26 August. Available at:
https://euobserver.com/foreign/26644.
49 Christakis, T. (2011). The ICJ Advisory Opinion on Kosovo: has international law something to say about secession. LJIL, 24, p. 81.
international law when they are 'connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character'.
50For Russia this is precisely where the shoe pinches: the declarations of independence issued by the Supreme National Court of Crimea was only possible through a intervention of Russian military forces that drastically reduced, if not completely eliminated the effectivity of the Ukrainian authority over the peninsula. This military intervention completely lacked any legal basis provided by international law, and could therefore be seen as a unlawful use of force against the territorial integrity or political independence of Ukraine within the meaning of Article 2, paragraph 4 of the Charter of the United Nations. The military intervention by Russia could possibly even be qualified as an act of aggression, bearing in mind that 'the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State thereof' can be considered an act of aggression under international law.
51The Russian Federation has legitimized its orchestrated military intervention in Crimea, citing the necessity of protection of Russian nationals from oppression by Ukrainian fascists. However, this argument has been highly disputed by international law: it is widely held that the right to self-defence, as provided by article 51 of the United Nations Charter only refers to armed attacks aimed at a territory of a state, and not to attacks against nationals or ethnic groups.
52Moreover, it remains very much a question if the wellbeing and protection of ethnic Russians within the Crimean peninsula were truly in peril, let alone if they were in fact victim of an 'armed attack' by Ukrainian and anti-Russian movements. In other words, it appears that Crimea's declaration of independence came about as a result of, or more likely, occurred in connection with the unlawful use of force against the territory of a state by a third actor, namely the Russian Federation. It seems that in complacently referring to the advisory opinion on Kosovo of the International Court of Justice, Russia has flung a boomerang in the air only to be hit by it in the face: because the declaration of independence issued by the Crimean National Supreme Court occurred in connection with the unlawful use of force, therefore constituting an egregious violation of norms of general international law of a peremptory character, namely the prohibition of the use of force against the territorial integrity
50 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 22 July 2010, paragraph 81.
51 See article 3 sub a, Definition of Aggression, GA res. 3314 (XXIX), UN GAOR, 29. Sess., U.N. Doc. A/9890, 1974, p. 14.
52 Gray, C. (2018). International law and the use of force. Oxford University Press., p. 88-92 and 156-160.
or political independence of a state, as laid down in article 2, paragraph 4 of the UN Charter, this declaration of independence could be very well deemed a breach of fundamental principles of international law and therefore could be declared illegal.
4.6. Preliminary Conclusion
As mentioned previously, the conclusion of the Court in its Kosovo advisory opinion formulates that general international law contains no prohibitive rule that prohibits states from unilaterally declaring themselves independent. The conclusion of the Court has surely been experienced as a disappointment, not only for Serbia, but also for those who hoped that the Court would once and for all formulate a clear judgement on the legal ramifications of unilateral declarations of independence, the right of self-determination and, linked with that, unilateral right to secession outside the context of decolonisation. Instead, as has been discussed, the Court, perhaps unnecessary, explicitly refused to comment on these questions. It merely noted that general international law contained no prohibitive rule for entities to unilaterally declared themselves independent. This means that Putin and his cronies were in fact right, and that the Western leaders were wrong: the declaration of independence of Crimea did in fact not violate general international law. However, as has been demonstrated previously, the Court did accept a framework with which possible illegality can be attached to declarations of independence, meaning that international law does not justify unilateral declarations of independence under all circumstances. According to the Court, declarations of independence can be incompatible with international law when they are 'connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character'. This means that if the declaration of independence of Crimea occurred 'in connection with' the unlawful use of force, and there are indicators that may suggest this in fact true, the declaration of independence issued by the Crimean authorities may very well be deemed a breach of fundamental principles of international law and therefore could be declared illegal.
5. The (il)legality of Crimea's unilateral secession from Ukraine.
As has been established previously, both the Russian and the Crimean authorities make reference to the Kosovo Advisory Opinion in an attempt to justify the events on the Crimean Peninsula that led to its secession from Ukraine and its absorption in to the Russian Federation.
They view this opinion as proof that unilateral declarations of independence do not constitute
a breach of fundamental principles of general international law. Moreover, in addition to this
contention, the Russians believe that the people of Crimea have successfully invoked their right
to self-determination. While the declaration of independence issued by the Crimean authorities didn't contain the invocation of this right, the Russian Federation on various occasions expressly referred to the right of self-determination in order to justify Crimea's breaking away from Ukraine. During the sessions at the UN security council, the Russian representatives reflected this position when it claimed that Crimea ‘fulfilled what is enshrined in the Charter of the United Nations and a great number of fundamental international legal documents, their right to self-determination’. A successful appeal to this right would, according to the Russians, mean that Crimea can legally separate from Ukraine. Furthermore, as has been pointed out, the Russian seem to implicitly hint to the possibility of the right to remedial secession, a doctrine that is seen as to encompass the right to unilateral secession in case of serious injustices suffered by a people. In short, the right to self-determination entails a collective right of a people, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, and in some cases may even grant the possibility to independence/unilateral secession. The question rises, whether or not the current legal framework of international law provides for the ability for Crimean authorities to rely on the right to self-determination as a justification for the unilateral secession of the Crimean peninsula from Ukraine, and if the people of Crimea can rely on the doctrine of remedial secession. In this section it shall be clarified what exactly the term self-determination means within the scope of international law. Continuing, the doctrine of remedial secession will be explained. Finally, an answer will be sought to the question whether the population of Crimea can appeal to the right of self-determination and/or the doctrine of remedial secession, and whether this indeed means that Crimea could have been allowed to separate from Ukraine.
5.1 The Right to self-determination.
The right of a people to self-determination stipulates that people, based on respect for the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status without outside interference. The right of a people to self-determine is one of the most important principles of modern international law, and is laid down as one of the four purposes of the United Nations, as described in article 1, section 4 of the United Nation Charter.
53The notion of self-determination knows an interesting history that stems back to the end of the 18th century. Initially, the notion of a right for a people to arrange their own political and cultural status on the world scene came about during the
53 Charter of the United Nations, 26 June 1945, art. 1, paragraph 4.
American and the French revolution. The American Declaration of Independence of 1776 is regarded by many authors as a kind of starting point for the development of the notion of self- determination.
54"Governance for the people, by the people", is a slogan of the American Declaration of independence, which can be discerned from the following famous paragraph of the declaration:
We hold these truths as self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alert or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness.
55A similar conviction can be found during the French Revolution. Here, the right to self- determination too, was considered as a guiding principle in guaranteeing the democratic legitimacy of an emerging state entity: ‘egalité, fraternité, and liberté’ would become the new figureheads of a renewed social contract between citizens and a new state. A state which derived its right to exist from an unconditional duty to guarantee the freedom of its citizens to determine their fate without having to bear with strenuous government interference.
56The spirit of this renewed social contract between citizen and government, inspired by Enlightenment thinkers Jean Jacques Rousseau and Montesquieu, was captured by the National Assembly on August the 26th, 1789 in the 'Declaration des Droits de l'Homme et du Citoyen'.
Moving forward, the 19th century is categorized by a number of cases in which colonized peoples wanted to separate themselves from their colonizers. Fuelled by the uprisings in both America and France, the spirit of revolution sparked to the South American continent, where the notion of self-determination was considered as a driving factor behind the decolonization of Spanish and Portuguese occupied Latin America.
57Nevertheless, the American revolutions
54 See Lu, J. (2018). On State Secession from International Law Perspectives. Cham: Springer; and Espinosa, J.
F. E., Espinosa, E., & Reschke. (2017). Self-determination and humanitarian secession in international law of a globalized world. Springer International Publishing AG, part of Springer Nature.
55 Jefferson, T. (2019). The declaration of independence. Verso.
56 Franck, T. M. (1992). The emerging right to democratic governance. The American journal of international law, 86(1), 46-91.
57 Alvarez, A. (1909). Latin America and international law. The American Journal of International Law, 3(2),
