On the question of why the U.S. government considers the Crimean referendum on secession from Ukraine to be illegal, Michael S. Rozeff points toan interview with John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law at the Council on Foreign Relations (CFR), whose answer consists of (a) Alice-In-Wonderland-worthy illogic and (b) lying about what international law has to say about the right to self-determination. Bellinger’s full response to the question is as follows:
The Obama administration and most European governments argue that the referendum violates both the Ukrainian constitution and international law. The Ukrainian constitution requires that any changes to the territory of Ukraine be approved by a referendum of all of the Ukrainian people. The requirement is consistent with general principles of international law, which respects the territorial integrity of states and does not recognize a right of secession by a group or region in a country unless the group or region has been denied a right to “internal self determination” (i.e., its right to pursue its own political, economic, social, and cultural development) by the central government or has been subject to grave human rights violations by the central government. These factors, which could give rise to a right of remedial secession under international law, are not present in Crimea.
International law prefers to preserve the territorial integrity of states and limit the right of popular self-determination because minority secession movements, if allowed to proceed without limits, do not reflect the views of the majority in a state and could lead to the breakdown of the international system.
Rozeff points out that Bellinger’s argument boils down to saying that “the powers-that-be in a state don’t allow self-determination of minorities because (a) the majority doesn’t like it, and (b) the reason they don’t like it is because the existing state would break down.” He notes that this reasoning is not “grounded in justice or rights but only grounded in maintaining the status quo, the powers-that-be in a state want to maintain the state in its current status of control, territory and power. Self-determination is not in this calculus.”
Indeed, Bellinger’s argument is fatally self-contradictory. How can it logically be possible that the right to self-determination may only be legitimately exercised by a minority group in a state if the means by which they determine to exercise that right meet the approval of the state and its majority? This is plain nonsense. It is like saying, “People have a right to free speech, but they may not just go around saying anything they want if most others don’t like to hear it.” To argue that majority approval is required for a minority to exercise their rights is in effect to say that the minority has no rights. And to recognize that a minority group has a right to self-determination is by definition to recognize that no majority may legitimately exercise any veto power over how that right is exercised. The Ukrainian constitution can “require” majority consent for a minority group to exercise their rights all it wants, but this is a fundamentally illegitimate law that is rendered null and void by virtue of its infringement upon the right to self-determination of the minority.
Ah, but Bellinger would have us believe that this constitutional requirement “is consistent with general principles of international law”. Really? Let’s see what international law has to say about the right to self-determination. It is enshrined in the U.N. Charter, Article I of which states:
The Purposes of the United Nations are … To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…
The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights both state in Article I:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development…. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
The International Court of Justice (ICJ) has opined:
The Court first notes that during the eighteenth, nineteenth and early twentieth centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State from which independence was being declared. Sometimes a declaration resulted in the creation of a new State, at others it did not. In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation. A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases.
The ICJ further pointed out that where the U.N. Security Council had condemned declarations of independence, it was not because they were unilateral declarations, but because they were “connected with the unlawful use of force or other egregious violations of norms of general international law”. The ICJ concludes that “no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council” and that “general international law contains no applicable prohibitions of declarations of independence.”
Contrary to what Bellinger would have us believe, and for the obvious reason, there is nothing in international law that says “All peoples have the right to self-determination, which may only be exercised by a minority group given approval from the majority.”
So did the Crimean referendum violate international law? What a preposterous assertion! Of course not. It is perfectly in accordance with international law and its recognition and guarantees of the right to self-determination. Did it violate the Ukrainian constitution? Irrelevant! Any supposed “law” that seeks to exists for no other reason than to deny people their rights—in this case, to deny any minority group their right to self-determination—is no law at all, but itself illegitimate, illegal, null and void.
The aforementioned ICJ advisory opinion, incidentally, was made with regard to Kosovo’s secession from Serbia, which the U.S. supported. One lesson that can be drawn is that the U.S. government supports the right to self-determination if doing so furthers its own policy goals, but opposes it when the exercise of this right would be contrary to Washington’s efforts to centrally plan how the people of the world should live their lives.