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Secession and Annexation: The Case of Crimea

Published online by Cambridge University Press:  06 March 2019

Amandine Catala

Abstract

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The recent crisis involving the territory of Crimea has been characterized both as a case of wrongful annexation and as one of rightful secession. Territory and competing territorial claims lie at the heart of the normative questions of secession and annexation. Any normative theory of secession or of annexation must therefore address their territorial aspect: It must explain why one agent rather than another has a valid claim to the disputed territory. One of the most interesting, yet controversial, normative accounts of secession has been offered by choice theorists of secession. Choice theorists adopt a rather permissive stance, based on the normative significance of political self-determination. Choice theories, however, have been widely criticized for failing to provide a satisfactory account of what legitimates the seceding group's territorial claim. This article argues that it is possible to remedy choice theories’ failure to address the question of territorial justification adequately. To do so, this article offers a two-tier account of territory that is grounded in the normative significance of self-determination. It defends this account of territory by showing that it is implied by our normative condemnation of annexation. It argues that the same reasons that warrant opposition to annexation provide support for secession, In closing, this article revisits the case of Crimea in light of its two-tier account of territory, and considers what role international law and institutions might play in addressing this type of situation.

Type
Research Article
Information
German Law Journal , Volume 16 , Issue 3: Special Issue - The Crisis in Ukraine , July 2015 , pp. 581 - 607
Copyright
Copyright © 2015 by German Law Journal GbR 

References

1 The referendum took place on 16 March 2014. Results reported by election officials indicated ninety-five percent of votes in favor of joining Russia, based on eighty percent of papular participation. See BBC, Crimea Referendum: Voters “Back Russia Union,” (Mar. 16, 2014), http://www.bbc.com/news/world-europe-26606097 (last accessed June 18, 2015); BBC, Crimea Exit Poll: About 93% Back Russia Union, (Mar. 16, 2014), http://www.bbc.com/news/world-europe-26598832 (last accessed June 18, 2015).Google Scholar

2 Here and throughout, the term “normative” is used in its moral-philosophical sense, not in Its legal-juridical sense.Google Scholar

3 See, infra note 10.Google Scholar

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5 For a taxonomy and review of those different theories, see Buchanan, Allen, Theories of Secession, 26 Phil. & Pub. Affs. 30 (1997); Moore, Margaret, Introduction: The Self-Determination Principle and the Ethics of Secession, in National Self-Determination and Secession 1 (Margaret Moore ed., 1998).Google Scholar

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9 Such as the principle that only national groups can have valid secessionist and territorial claims —as nationalist theorists of secession would argue—or that the legitimacy of an existing state is a sufficient condition not to violate its territorial integrity—as just-cause theorists of secession would argue. For examples of nationalist theories, see Margalit, Avishai & Raz, Joseph, National Self-Determination, 87 J. Phil. 439 (1990); Miller, David, Secession and the Principle of Nationality, in National Self-Determination and Secession 62 (Margaret Moore ed., 1998); Kymlicka, Will, Territorial Boundaries: A Liberal Egalitarian Perspective, in Boundaries and Justice: Diverse Ethical Perspectives 249 (Miller, David & Sohail Hashmi eds., 2001). For an example of just-cause theory, see Buchanan, Allen, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (1991); Buchanan, supra note 7.Google Scholar

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41 One might object that using the principle of community property to build this analogy is question-begging: Why pick this principle rather than other possible principles of marriage contracts? Because the principle of community property constitutes a middle ground between the two extremes of complete merging and complete separation of assets. Thus, the burden of proof here is on those claiming that a more extreme principle should be used. Of course, opting for complete separation of assets would only reinforce the secessionists’ case.Google Scholar

42 Otherwise put, what makes a group the same group over time is not a matter of what the group is—matching some set of objective criteria—but rather a matter of what the group does—engaged in sustained social and political cooperation,Google Scholar

43 This article's territorial account is in some respects similar to, yet in other respects crucially different from, an account offered by Anna Stilz. See Stilz, Anna, Nations, States, and Territory, 121 Ethics 572, 578, 588-89 (2011). For specific differences between the two accounts, see, infra notes 45 and 47.Google Scholar

44 Cf. Oklopcic, Zoran, The idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights and Constitutional Paradoxes, 16 German L.J. 658 (2015).Google Scholar

45 Here this article's territorial account parts ways with Stilz's, which precludes the permissibility of secession arguably, inconsistently. See Stilz, supra note 43, at 597, 600. Indeed, the required rights of free association, free speech, and political participation would imply the rights for a group to select its political representatives and to form parties advocating secession as well as local governments holding plebiscites on the possibility of secession. If those measures are permitted, then respecting the democratic process would seem to require granting secessionists negotiations, should the majority be in favor of secession. See Norman, Wayne, Domesticating Secession, in Secession and Self-Determination 193, 207 (Macedo, Stephen & Allen Buchanan eds., 2003). Indeed, this is the position adopted by the Canadian Supreme Court in its 1998 “Reference” on the Quebec secession issue. See Buchanan, supra note 7, at 224.Google Scholar

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47 Here this article's territorial account further departs from Still's, according to which the relevant type of group is that which results from the formation of the state. See Stilz, supra note 43, at 579–80.Google Scholar

48 Note that settling the territorial question—who has a valid claim to what territory—does not yet settle the question of secession. As mentioned at the outset, the aim of this article is not to provide a comprehensive account of morally permissible secession. In addition to the territorial component which has been the focus of this article, other considerations would have to be taken into account in order to establish a full moral case in favor of secession—for example, a peaceable and transparent referendum, the viability of the remainder state, fair terms of separation regarding economic and natural resources, etc. Thus, having a valid territorial claim is a necessary but not sufficient condition for secession to be permissible.Google Scholar

49 It is a prima facie case because other considerations might override it. See, supra note 48.Google Scholar

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57 Buchanan, supra note 7, at 27.Google Scholar

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63 Catala, Amandine, Remedial Theories of Secession and Territoriol Justification, 44 J. Soc. Phil. 74 (2013).Google Scholar

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65 Relatedly, the existence of a moral right does not depend on how easy or difficult it would be to realize that right. If you are a millionaire, it might be very easy for you to give me $100, but that does not mean I have the right to receive $100 from you. Conversely, if you hit me with your car and you have no insurance, it might be very difficult for you to compensate me appropriately, but that does not mean that I do not have the right to receive appropriate compensation.Google Scholar

66 Altman & Wellman, supra note 10, at 62.Google Scholar

67 Cf. Roth, supra note 51.Google Scholar

68 See Vidmar, Jure, The Annexation of Crimea and the Boundaries of the Will of the People, 16 German L.J. 365 (2015); MacLaren, supra note 50.Google Scholar