UKRAINE, SELF-DETERMINATION, AND EMERGING NORMS FOR UNILATERAL SECESSION OF STATES.

• Published date: 01 January 2020
• Author: Esposito, Rocky
• Date: 01 January 2020

INTRODUCTION

In 1991, the Soviet Union dissolved, devolving from a single political entity into 15 discrete independent republics. (1) Following the Soviet Union's collapse, several breakaway movements emerged in post-Soviet states: Chechnya and Dagestan in Russia, (2) South Ossetia and Abkhazia in Georgia, (3) Transnistria in Moldova, (4) Artsakh (also called Nagorno-Karabakh) between Azerbaijan and Armenia, (5) and, most recently, Crimea, Donetsk, and Lugansk in Ukraine. (6) Many of these conflicts have persisted for decades. (7)

Although each of these separatist movements - known as "frozen conflicts" (8) - arose from different sets of geographic, political, and ethnic grievances, (9) they pose a common problem: how can international law evaluate the validity of these breakaway movements? Although international law has addressed issues raised by secessionist movements in the past, unilateral secessions by non-colonized states or proto-states raise peculiar factual and legal issues. (10) Frozen conflicts in the post-Soviet sphere implicate different factual, historical, and legal questions without the benefit of righting an unambiguous historical wrong. (11)

This note focuses on the possibility of legal justification under international law for secession by two proto-states in Eastern Ukraine presently locked in frozen conflicts: the Donetsk People's Republic ("DPR") and Lugansk People's Republic ("LPR"). (12) Although there are differences between them which may have material effects on their legal claims to statehood, (13) both regions share significant linguistic, demographic, cultural, and historical traits which put their broader claims for sovereign legitimacy on similar footing and merit side-by-side analysis. (14)

Part I of this note focuses on the historical background of the Donbass (15) region, the origins of the current conflict, and the current status of the secessionist states in Donetsk and Lugansk.

Part II of this note examines current and emerging international law norms concerning statehood, the right of self-determination, state rights to territorial integrity and sovereignty, and secession from non-colonial parent states. This section aims to distill from scholarly consensus and state practice an intelligible rubric to evaluate proto-state claims to a right of unilateral secession.

Part III of this note applies the standards developed in Part II to the facts of the DPR and LPR secessions. This section evaluates two principal questions: whether the DPR and/or LPR meet prevailing criteria for statehood; and whether the secessions of these regions are supported by sound legal principles (extant or emerging) for the legitimacy of secessionist states.

I. HISTORICAL BACKGROUND TO THE DONBBASS CONFLICT AND ITS CURRENT STATUS

In late 2013, a major protest movement arose in Ukraine in response to a refusal by the ruling Party of Regions to sign a promised trade agreement with the European Union. (16) The protests, termed "Euromaidan," spurred the flight of then-president Viktor Yanukovych from the country, (17) the election of a pro-European majority in parliament, (18) and the withdrawal of the Party of Regions from Ukrainian politics. (19) Shortly after Yanukovych's flight to Russia, counter-protest movements seized control of the eastern oblasts (20) of Donetsk and Lugansk, a region known as the "Donbass." (21) In May of 2014, those oblasts held questionable referenda which purported to express Donbass residents' intention to exercise control over that territory. (22) Since that time, the region has remained largely under the control of the Donetsk and Lugansk Peoples' Republics. (23)

Prior to the late 19th century, the Donbass was an inhospitable steppe used primarily as a battlefield in the frequent clashes between Slavic and Turkic empires. (24) The tumultuous history of the region and its subsequent rapid development as a mining center with a diverse imported population inculcated a frontier character of "freedom, militancy, violence, terror, [and] independence" which "transccnd[s] the borders of Russia[] and Ukraine." (25) When the Russian Empire industrialized the Donbass, it did so by importing Russian peasant labor and foreign investment capital. (26) From this context emerged a unique cultural identity neither fully Ukrainian nor Russian. (27)

As a result of this unique identity, the Donbass has historically been concerned with administrative freedom and retention of a greater proportion of the industrial wealth generated in the region. (28) Additionally, residents of the Donbass favored a political order which, though subject to Ukrainian sovereignty, maintained close ties with Russia economically, socially, and politically; (29) Pirie notes that in the first national Ukrainian elections in 1994, "[t]he Donbass' support for much closer ties with Russia" was confirmed by poll results in Donetsk and Lugansk on the question of joining the Commonwealth of Independent States (CIS): (30) "88.7% of Donetsk voters and 90.7% of Lugansk voters" voted in favor of joining. (31)

These attitudes--independence, apathy toward both Ukrainian and Russian nationalism, nostalgia for the unity and stability of the USSR, and a historical grudge against external rent-seeking on the Donbass' industrial productivity (32)--all came to a head in the wake of President Yanukovych's flight to Russia. (33) Yanukovych is Donbass, born and bred: he grew up in Yenakievo, a Donbass city, where he reportedly "fell in with a street gang and received two convictions for robbery and assault." (34) After the fall of the USSR, Yanukovych entered local politics and built the Party of Regions into a powerful regional political organization. (35) His background as a political outsider and a Donbass native with a checkered past resonated with a Donbass that feared exploitation and forced Ukrainianization by the nationalistic, anti-Russian western part of the country. (36) Donbass residents saw him "as 'their guy,' who would make decisions in their... best interest." (37) For the separatists in Donetsk and Lugansk, the Euromaidan revolution represented a decisive opening salvo against the interests of the Donbass, and the culmination of irrevocable differences in priorities over Ukraine's future. (38)

II. CURRENT AND EMERGING INTERNATIONAL LAW NORMS GOVERNING STATEHOOD, SECESSION, AND THE SELF-DETERMINATTION OF PEOPLES

A. Statehood

International legal consensus has largely rejected the "constitutive" theory of statehood, which posited that recognition by other states (or a community of other states) was necessary for statehood. (39) In its place, international law has recognized a "declarative" theory of statehood, which defines states by "the exercise of effective power by an authority over a territorial community, and the representation of the community in its relations with like communities." (40) The Montevideo Convention on the Rights and Duties of States of 1933 articulated "the best-known formulation" of these "'classical' criteria for statehood." (41) In order to be a state, an entity must meet four criteria: "(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States." (42) Although these criteria are plainly-stated, they require nuanced case-by-case application; the specifics of their applicability to the DPR and LPR are explored in Section IIIA, below.

B. Self-Determination

International law recognizes a right to self-determination of peoples. (43) By 1995, the International Court of Justice found the right to possess "an erga omnes character," such that each state has an obligation toward the entire international community to support the right. (44) The right is vaguely defined: the UN charter refers only to "the principle of equal rights and self-determination of peoples" as a basis for the "develop[ment] [of] friendly relations among nations." (45) A more robust definition appears in the UN "Friendly Relations Declaration" which indicates that the self-determination of peoples includes "the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development." (46) The vagueness of this formulation of the right may arise from its origins as a modern-era rejection of the divine right as a fundamental principle of state legitimacy. (47)

Over time, the right of self-determination has been interpreted as two discrete rights: "internal self-determination," or "the protection of minority rights within a state," and "external self-determination," or "secession from a state." (48) This distinction has a basis in the tension between the right of self-determination and "two core concepts of the euro-centric system of states: state sovereignty and territorial integrity." (49) A strictly-construed right to self-determination, would imply a right to on-demand secession by any "people." This would undermine the principle of territorial integrity and subject state sovereignty over its territory to the constant threat of secession. (50)

To protect the vital state interest in territorial integrity, international law considers "that the right to self-determination of a people is normally fulfilled through internal self-determination--a people's pursuit of its political, economic, social and cultural development within the framework of an existing state." (51) The 1970 UN Friendly Relations Declaration provides a rough definition of internal self-determination: it states that "[t]he 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." (52) However, the Declaration also prohibits "authoriz[ation] or encourage[ment of] any action which would dismember or impair, totally or...