Is the Crimean Referendum Legal?

On March 16 Crimea is to hold a referendum to define its fate. The decision has evoked an extremely nervous reaction in the West. US President Barack Obama said it violated international law but never adduced any legal arguments to support the statement.  The same applies to other statements on this account; they all lack legal substantiations.

The United Nations International Court of Justice handed down an advisory opinion in 2010 saying unambiguously that the unilateral declaration of independence is in accordance with the international law.

A referendum based decision is not a “unilateral declaration of independence”.  The Court’s ruling was related to the unilateral declaration of independence by the illegitimate government of Kosovo and Metohija. In the case of Crimea the government is democratically elected and legitimate. There are no international norms to be violated; such norms simply do not exist.

Some lawyers have started to come up with “legal” substantiations for the Western governments’ statements. But they look to be too hastily prepared to prove anything.

They often say the referendum violates the principle of Ukraine’s territorial integrity. Sounds solid enough at first glance, but it has no legal basis. To define what the “principle of territorial integrity” means one should refer to The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations adopted by the resolution 2625 (XXV) of the United Nations General Assembly on October 24, 1970. Actually the principle of territorial integrity is “deluded” by the principle of the use of force or the threat to use force. So the principle we’re talking about has the following definition:

The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations». Its content is as follows, «Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.

The territorial integrity is recalled in the context of outside intervention. The principle has no relation to the internal politics. The Western politicians are trying to make it look like if there were some principle of territorial integrity which would say that the territory of a state cannot be changed. As one can see for himself, it’s not the case.

If the Western lawyers refer to the 1970 Declaration on Principles of International Law, they adopt a selective approach. The document contains the principle of non-interference into the internal affairs of states. It is formally called “The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter.” It goes like this.

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

The declaration states clearly that interference cannot be justified no matter what the reasons are or how important it may seem to be for outside forces. “Any” interference and “any” threats are forbidden. Interference and threats – that is exactly what the Western states are doing, for instance, the interference into the affairs of Crimea by obstinately repeating the statements about the referendum being “illegitimate”, or threats addressed to Russia.

Finally, the very same Declaration contains the principle of self-determination of peoples. It reads:

By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

No interference is mentioned again as the West is constantly meddling into the affairs of Crimea.

Why do they adopt such a selective approach while citing international documents?

It should be noted that no way could Russia’s actions be compared with what the West does – Russia acts upon the invitation of the Ukraine’s legal authority. Here is the mismatch between the international law and what Western politicians say and do. They realize well that the authority which has invited Russia is legal. That’s why the discussion is adroitly made slide to the issue of “legitimacy” which is not a legal, but rather a scientific notion.

Talking about the interference into the process of self-determination, then again Russia is invited by the legal authorities. In contrast nobody in Crimea has invited the West.  Thus the reference to the 1970 Declaration on International Law does not provide the West with any legal arguments. The West, itself, is in violation of the document.

Perhaps the Western colleagues, who affirm that the Crimea referendum is “in violation of international law” mean something else? Then why not make it precise? Let’s try to help them.

Maybe they don’t mean the referendum itself but rather the questions offered for consideration which could breach the international law in case the majority say yes?  Perhaps they are afraid that the population of Crimea will support the peninsula’s accession to Russia? But in this case again there will be no violation of international law. The Declaration on the Principles of International Law states:

The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.

Then maybe the Western colleagues want to say that the international law is breached because the referendum is held only in Crimea, not the whole Ukraine? Then the question arises, what international legal norm is violated by a referendum held in Crimea only?

Maybe they are too shy to adduce this argument because they have failed to find an explanation why they were the first to recognize the independence of South Sudan separated from the Republic of Sudan as a result of referendum held only in the south of the country?  The referendum was held there under the United Nations aegis. The same applies to the referendum conducted by the United Nations in Eritrea separated from Ethiopia to be universally recognized. Then it should be explained why the West has not declared the referendum to be held in Scotland in September 2014 to be in violation of international law as it will not take place in other regions of Great Britain?

The last hope for Western lawyers is the ruling of Canada’s Supreme Court in 1998 saying the separation of Quebec is impossible on the basis of a referendum held in Quebec only instead of all-Canada vote. This is a great argument but with a string attached: Canada does not rule the world yet and therefore its court decisions are not incorporated in the international law.

So what do Western governments and their lawyers mean when they say the Crimea referendum is “in violation of international law”? The lack of clear-cut definitions and weighty legal arguments is egregious. It proves that they understand well the referendum in Crimea does not violate any whatsoever international legal norms. To the contrary, it’s an example of compliance with international law by the people of Crimea.

• This article first appeared in Oriental

Alexander Mezyaev is a Russian lawyer, Chief of the Department of the Constitutional and International Law of the Public Management University of Tatarstan. He lives in Kazan, Russia. Read other articles by Alexander.