There is hardly a topic of international law that is thornier than secession, i.e. the right of part of a state’s population and territory to break away from the parent state and form a separate country.
Underlying this difficulty is the fact that secession hits on one of the massive disconnects between international law and public consciousness. There is a serious misconception out there that international law is a soft little topic full of talk about human rights in a lovey-dovey, judgment-free atmosphere. The truth, however, is a little more basic. Think of a steel bar wrapped in layers of tulle and you’ll have a certain mental image of international law.
So what does this have to do with Crimea? In a previous article, I discussed the political dimensions of Crimean independence and unification with Russia. In this piece, I would like to focus on the legal aspects, as divorced from the political ones (no easy task). Hence, the need to ensure that we are all on the same wavelength.
The most basic purpose of international law is to give us all a modicum of peace and security. Peace and security are like your health – if you don’t have them, you don’t have anything. And this is where we enter into some serious problems.
The accepted wisdom is that change is inimical to stability (and therefore peace and security), so the less change, the better. Thus, if circumstances have decreed that you are part of a certain state, there you shall remain, regardless of your preferences. To do otherwise would be to make a serious alteration to the international order and thus to invite instability. This stream of thought, however, is at odds with much cherished ideas of freedom and self-determination, not to mention basic progress. All progress demands change, but all change is potentially destabilizing to the international system.
When it comes to the right of secession, Western countries have worked out a sort of compromise between these two values of stability and self-determination. Under this compromise, secession is considered to be legal under two scenarios: a) the parent state authorizes the new state to secede (examples include India’s independence from the British Empire or the Clarity Act, which lays out requirements concerning Quebec’s possible secession from Canada), or b) the part of the state that wishes to secede has experienced such severe human rights violations at the hands of the parent state that it would be hopeless to expect a return to a peaceful, unified existence. This was the line that was taken on Kosovo, but it had a precedent in Bangladesh, which split from Pakistan in 1971 following the bloody suppression of resistance to government.
At first glance, this solution sounds quite sensible, and versions of it have been paraded around Western media for the past week, albeit usually in considerably less detail. However, in order to declare that this understanding of the legality of secession is ‘the law’, there has to be a certain degree of consensus that this is in fact the case. And this does not exist, because this ‘Western model’ of secession being legal under only the two aforementioned scenarios represents a sanitized version of world history.
There are cases of secession which fit the Western model that are not universally recognized. While Bangladesh was quickly recognized by India and the former Soviet allies as an independent state, Western nations were rather slower to come on board. The case of Kosovo has been even more divisive. Spain, for example, faced with Basque and Catalonian separatists, does not recognize Kosovo as an independent State. Neither do Russia, China, India, most of South America and large parts of Africa and Southeast Asia. The only judicial statement on Kosovar independence was issued by the International Court of Justice within the confines of an Advisory Opinion, which is not legally binding.
Equally, there are historical examples of secession which do not fit the Western model, yet which are nearly universally accepted.
Indeed, the United States was founded on the premise that its citizens had the right to exercise self-determination and secede from the British Empire for no better reason than that they thought they were being unfairly taxed. Israel also more or less seceded from Britain’s Palestinian mandate before a negotiated settlement on the territory’s future could be reached. While human rights violations came into play in this scenario, these were tangential to the legal issue of secession, because these violations were mainly committed by Germany and not by the peoples living in British Palestine. In both of these cases the ‘secession’ was successful, mainly due to the use of force by the seceding parties.
This pattern of violence also holds true for many of the ‘negotiated settlements’ on secession. The current plan for possible reunification of Northern Ireland with Ireland was the result of 30 years of violence, and even in Canada, the path to referendum on Quebec was preceded by the Front de Liberation du Quebec, which committed a chain of armed robberies and killed the provincial minister of labor, Pierre Laporte. As these examples indicate getting permission from the parent state to secede can be a very exciting process and not one that is necessarily commensurate with the word ‘stability’ (the goal we are supposed to be pursuing by limiting the right to secession).
Taking these cases into consideration produces a rather more differentiated scenario than the Western model of secession would have one accept.
However, to fully understand the legal significance of events in the Crimea, we also need to understand a second development in international law, and that is the increasing emphasis on preemption. Thus, over the past 15 years, Western governments have: acknowledged the National Transitional Council (NTC) to be the legitimate government of Libya in a situation where it was unclear who the NTC even were or how much territory they controlled; focused on forming military rapid reaction forces that can be deployed independently of UN approval; approved the NATO campaign against Serbia without a corresponding Security Council resolution; attacked Iraq on the pretext that it possessed weapons of mass destruction; attempted to do the same with Iran; and habitually engaged in ‘targeted killing’ of alleged terrorist suspects without charge or trial.
Freely, these actions have all been subject to some considerable dissent, but they were done, and the emphasis has been on doing them very, very fast. When it comes to ‘protecting’ civilians from the danger du jour, it would appear that acting swiftly and decisively is of paramount importance.
What Russia has basically done in regards to its position on the Crimea is to pull the threads of these two streams of thought together, in a manner which is, if anything, rather restrained. If unilateral secession is permissible in cases of gross human rights violations and one should act quickly to prevent those violations from occurring, what could be more sensible than secession before said violations materialize? As opposed to afterwards, for example? Preemption has been applied to so many causes lately that this was not exactly a huge leap.
Considering that Crimeans by all accounts seemed to favor independence by a considerable margin, and that no real evidence of undue influence on the part of Russian forces or pro-Russian militia has yet been found, the need to wait on holding a referendum and subsequent unification with Russia is a little unclear, considering the need for speed that seems to be so urgently felt elsewhere. What we would be waiting for in this case remains unsaid. For the Ukrainian army to retake an independence-minded Crimea? The picture which that conjecture calls to mind is not pretty.
This preemption mode of international law admittedly makes the world into a very hypothetical place, because it involves reacting to events that haven’t yet fully materialized. But it is the inevitable product of Western nations having treated international law as their personal toy for the past 15 years, forging ahead with new principles which they now object to seeing applied in ways which they did not foresee.
The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.