Should secession be legal
Not legal, but legitimate
Secession - the separation of parts of the state, disintegration of alliances of states and the resulting new states - is nothing unusual in the history of modern times. It is no exaggeration that the world of today is in large part the result of processes of secession, beginning with the secession of the United States from Great Britain through the Declaration of Independence of 1776 and victory in the War of Independence.
The conflict over Crimea and eastern Ukraine is not an isolated incident. The small continent of Europe is full of acute and latent secession conflicts. A referendum on secession from Great Britain is due in Scotland in September, the result of which is to be accepted by both sides. In Northern Ireland and Wales, England is faced with further separation efforts. In the Basque Country and Catalonia, strong forces are working for state independence from Spain and France, which also has to do with independence movements in Corsica. Italy has to fight back from secessionism in Lombardy and Sardinia.
The separation of Abkhazia and South Ossetia from Georgia as independent states are recognized by only a few states apart from Russia. The affiliation of Chechnya to the Russian Federation continues to be questioned by separatists. Transnistria has separated from Moldova without having achieved a secure state status. The Flemish-Walloon conflict in Belgium is much more than a language dispute. The list is not complete.
Current international law offers - apart from the liquidation of the imperialist colonial system and its replacement by formally independent states - neither in terms of contract law nor in terms of customary law, unambiguous regulations on secessions. The different, often contradicting practices and legal conceptions of the states made it impossible to develop customary international law on this matter. Secessions that are agreed by the part of the state willing to split up with the "mother state" or approved by it are unproblematic under international law. The "normal case", however, is that states oppose the secession of parts of their territory and exclude them in their domestic law. An exception were the Soviet constitutions of 1936 and 1977, which stipulated identically: "Every Union republic is guaranteed the right to freely withdraw from the USSR."
With regard to secessions, there is a tension between two equally binding principles of international law. On the one hand, this is the principle of the sovereign equality of states, which includes the inviolability of the territorial integrity of states. On the other hand, it is about the principle of equal rights and self-determination of peoples with the right to decide freely and without outside interference about their political status.
Both principles are enshrined in the UN Charter and outlined in the 1970 Declaration of Principles of International Law. I consider it inadmissible to judge the secession of Crimea from Ukraine and its admission into the Russian Federation as well as the secessionist efforts in eastern Ukraine only from the aspect of territorial integrity and to disregard the equally compelling right to self-determination. The Declaration of Principles states: “In their interpretation and application, the above principles are mutually dependent; each principle is to be understood in connection with the other principles «.
With regard to the right to self-determination, the declaration states: »The establishment of a sovereign and independent state, free association with an independent state, free integration into such a state or entry into another political status freely determined by a people are possibilities of realization the right of self-determination by the people concerned. "Then it is stated restrictively that these provisions are not to be interpreted as" empowering or encouraging them to take measures which would completely or partially dissolve or impair the territorial integrity or the political unity of sovereign and independent states . "
In between there is a but: This protective provision for sovereignty and territorial integrity should apply to states »which behave in accordance with the above-described principle of equal rights and self-determination of peoples and which therefore have a government that covers the entire population of the area regardless of race, of belief or skin color «. The same cannot be said of the behavior of the State of Ukraine and its current government towards the Russian part of its population.
After the dubious new election of the president, the Kiev rulers used brutal armed force to create a situation in eastern Ukraine that cannot be assessed as anything other than civil war. Art. 3 of the Geneva Conventions of 1949 and the II. Additional Protocol of 1977, which require the protection of the civilian population and prohibit attacks on them and on individual civilians and objects of vital importance, apply to this.
In international law there is no general right of parts of the population of a state to unilateral secession against the will of the "mother state". That could favor the disintegration of the world of states into innumerable subjects, destabilize international relations and deliver it completely to the dictates of imperialist great powers. This is countered by the right of every state to territorial integrity, which is included in the sovereignty.
However, secessions are not generally prohibited under international law. In international law, a majority of the opinion is that, in exceptional cases, a right to secession must be recognized with reference to the right to self-determination. Such a case is given »if the rights of the affected population group are permanently and seriously violated and an autonomous status is denied by the state ... if a situation is absolutely intolerable for a people not only in the present but also with no prospect of improvement in the The future is and there is no other way out. «(Norman Paech / Gerhard Stuby) With the discrimination and persecution of people of Russian origin by the current Kiev rulers, eastern Ukraine has come close to such an exceptional case.
The secession of Crimea from Ukraine was incompatible with the principle of respect for territorial integrity. That remains the case, even if one has to take into account that since the epochal change in 1990/92 the West has trampled on the legitimate interests of Russia in increasing order of steps.
But for historical and security reasons and also under the aspect of the right to self-determination, the return of Crimea to Russia was not legal, but legitimate. Referendums in areas wishing to secede are - if they are not contractually agreed or decided by the Security Council - not a matter on which international law has to rule. They therefore have no direct relevance under international law. If they stand up to democratic criteria, however, they can be indicators of the will of the population concerned to self-determination, which must not be ignored. In the case of the Crimea, that will was clear.
The often irresolvable contradiction between the protection of the territorial integrity of states and the right of populations to self-determination through independent statehood brings into play all the more two other equally binding principles of international law for the treatment of civil secession conflicts: First, the principle that states in their renounce the use or threat of violence in international relations. A secession must not be enforced by the military force of another state. According to Art. 5 of the UN's generally binding definition of aggression, “an acquisition of territory resulting from aggression” would “not be lawful and may not be recognized as lawful”.
However, Russia has not committed any act of aggression against Ukraine in Crimea. There was also no annexation of Crimea by Russia, according to Western politicians and the media. According to the Declaration of Principles, an annexation is the appropriation of territory of a state "by another state as a result of the threat or use of force". This does not apply to the admission of Crimea to the Russian Federation.
In contrast, the separation of Northern Cyprus from Cyprus was clearly a crime of aggression by Turkey, which NATO no longer resents its member and the EU its candidate country. The de facto separation of Kosovo from Serbia was one of the results of NATO's war of aggression against Yugoslavia, which is contrary to international law. Second, the principle "that the states settle their international disputes by peaceful means in such a way that world peace, international security and justice are not endangered."
This principle refers to "negotiation, investigation, mediation, settlement", to the "use of regional agreements and institutions" (such as the OSCE) or other peaceful means at the discretion of the conflicting parties. The imposition of "penalties" and sanctions against Russia is not only pointless and, according to former Federal Chancellor Helmut Schmidt, "stupid stuff" and suitable to exacerbate the conflict, but also contrary to international law, because the duty to settle disputes peacefully is violated.
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