عنوان مقاله [English]
The principle of “Self-determination” has been classified amongst the most fundamental rules of international law. In the context of positive international law, the principle can be interpreted as equivalent to decolonization and the prohibition of forced occupation. However, another theory named “Remedial Secession” has been proposed that the ethnic and racial groups inside a State may resort to external aspects of self-determination right, in exceptional circumstances and as the last option. The remedial secession theory has resulted in independence of some States. But some states have also used this theory as a scheme to occupy other countries or segregate some parts of their territories whether officially or as a de facto situation of annexation with flimsy and mock independence. Therefore, more or less, a contradiction and tension have been evolved between the two rules, i.e. prohibition of annexation, as a Jus cogens norm of international law which, in its turn, has derived from the right to self-determination, and the remedial secession theory as a new interpretation of the same right. In these circumstances, the Russian Federation has used the remedial secession theory as a tool to pursue its territorial expansionism policies. The Russians have resorted to the theory, inter alia, to segregate Crimean peninsula from Ukraine and annex it to their territory.
The main question of this paper is whether the secession of Crimea from Ukraine was a remedial secession or merely a type of annexation and territorial arrogation by the use of force and under the guise of the right to self-determination and the remedial secession theory. The assumption of the research is based on the hypothesis that the prohibition of occupation and annexation of lands are amongst the jus cogens rules of international law and one of the main examples of the right to self-determination, and the remedial secession theory cannot blemish these essential rules. In order to achieve a fair and unbiased conclusion, the arguments of both parties of the dispute, i.e. Ukraine and Russia have been examined by a descriptive and analytical approach and finally the validity of these arguments has been assessed carefully.
The Russian government claims that its military presence in Ukraine is legitimate on the basis of the principle of defense and the Crimean people’s right to self-determination as a legal basis for possession and annexation of Crimea. Russia claimed that the developments in Crimea were threatening the life of the Russian population in Crimea and therefore, Russia had to resort to military interference in Crimea and to support the process of secession from Ukraine. The Russian Federation also claimed that its presence in Ukraine is based on the invitation from the Ukrainian President, Viktor Yanukovych. Finally, the Russian Federation argued that the Crimean people had the right to self-determination and according to the theory of remedial secession they can secede from Ukraine and choose their path.
In response to the Russian’s arguments, the Ukrainian government invoked the principle of immunity of its territorial integrity and considered the Russian operation in the Ukrainian territory as an act of aggression. The Ukrainian government also considered the referendum in Crimea in contrast with the internal law of Ukraine and international law and emphasized that such referendum was non-democratic and was performed under the pressure. In an evaluation of the reasons for the parties, it should be noted that the Russian operation in the Ukrainian territory cannot be justified as self-defense. As self-defense should have the criteria of proportionality and necessity and none of these two standards is met about the Russian operation in Ukraine. The alleged invitation from the Ukrainian president also cannot justify the Russian military action in Ukraine. As the Ukrainian president was already deposed and the Russian operation was not aimed to restore the former president to power. Moreover, the Russian interference in the Ukrainian affair was not deniable and the referendum in Crimea was just a guise for annexation. With regard to the right of self-determination, it should be noted that the Ukrainian people have different cultures and identities and should be considered as “people” enjoying the right to self-determination from the objective and subjective perspectives. However, in the context of the positive international law, the Crimean people cannot enjoy the external aspect of the right to self-determination and the right to independence and secession.
The internal aspect of the Crimean people’s right to self-determination was virtually respected in the context of Ukrainian integrity. Even if the right was not respected fully, the legitimate solution to provide such rights or other human rights of the Crimean people is to negotiate with the Ukrainian government. Regardless of the fact that under the positive international law, separatism is not justifiable out of the context of decolonization, even in the perspective of the theory of remedial secession, there is no legitimate option for independence of Crimea. Since the remedial secession is only justifiable as the final solution and when all other options to maintain the right to self-determination of people are failed and their human rights are violated: the circumstance which is not compatible with the particular situation in Crimea. Therefore, the secession of Crimea from Ukraine and its annexation to Russia, shall be considered as a classical example of territorial annexation and possession of land by the use of force which is illegitimate and in contrast with the fundamental principles of international law, inter alia, the principle of immunity of territorial integrity of States. The example is comparable with similar historical cases such as annexation of Manchuria to Japan, establishment of the puppet regime in northern Cyprus by Turkey and occupation of Kuwait by Iraq.