Secession in eastern Ukraine: International law is put to the test

By Juan P. Tribelhorn


On October 12th the United Nations General Assembly voted for the second time on the legality of the secessions in eastern Ukraine. Although the attitude of the international community – at least in democratically organised states – seems resolutely opposed to these secessions, from a legal standpoint the issue of secession is hardly settled worldwide. The upcoming resolutions of the United Nations General Assembly could be ground-breaking for this issue and shape the future direction of international law on secession. Precision and coherence are needed.

The term secession can be defined as the unilateral separation of a part of the national territory at the instigation of a people (usually minorities). Under international law, a right of secession does not exist. An explicit prohibition has not been standardised either, which leaves the question of its legitimacy under international law open.

On the one hand, a right of secession would violate the territorial integrity of a state but on the other hand, an explicit prohibition of secession would violate the right of self-determination of peoples. A possible right to secession can be derived from the right to self-determination under international law. Secessionist movements and, in this case Russia, claim to rely on this principle.

The right of peoples to self-determination, which is mentioned in Articles 1 and 2 of the UN Charter, is a collective right which gives peoples the power to develop freely in political, economic, social, and cultural respects, on their territory but also abroad. Deriving a right of secession from this is affirmed or denied depending on the interpretation. The legal doctrines on the question of the right of secession are highly controversial. The term “remedial secession” is mentioned in doctrine and practice as a variant of secession that might be justified under certain circumstances. Proponents of this concept consider secession an ultima ratio measure, which should only apply when all other means of demanding autonomy and peaceful coexistence have failed. In this case, secession takes the form of a collective right of self-defence. A consensus on the existence and application of this concept has not yet emerged. Even the International Criminal Court (ICC) left the question open when it addressed it in the Advisory Opinion regarding the decision of the Kosovo of 22 July 2010 and stated there where “radically different views” in the international community regarding this question.

In the context of the budding secessionist movement in Donetsk, Luhansk, Kherson and Zaporizhzhia, invoking the remedial secession is highly questionable. Ukrainian Russians are, according to the last census conducted in Ukraine in 2001, a minority consisting of 17.3% (8,334,100 persons) of the Ukrainian population, living mostly in the four above-mentioned regions in eastern Ukraine, as well as on the occupied Crimean Peninsula. Despite the Ukrainian constitutional right under Article 10 of the Ukrainian Constitution, according to which the state language is Ukrainian, but “the free development, use and protection of Russian and other languages of national minorities of Ukraine are guaranteed”, in recent years there have been several institutional disputes concerning the rights of Russian minorities in Eastern Ukraine, which have increased the division between the two ethnic groups. However, this does not fully meet the criteria of a remedial secession according to the international community.
Russia is aiming to give the secessions legitimacy under international law and claims that the referenda in eastern Ukraine are an act of self-determination by the Russian minorities there. It should be noted, however, that the referenda were not issued in accordance with the rule-of-law criteria of the Venice Commission and the Council of Europe, which practically rules out recognition by the international community.

Given the situation, it is safe to say that Russia will not voluntarily cede the territories it occupies in eastern Ukraine. Ukraine is also almost certainly not going to give in, especially since it is entitled to these territories by the current law. The full scale of the arguments in favour and against the application of the “remedial secession” in the context of eastern Ukraine go far beyond this post. Nonetheless the international community is now called upon to find a consensus regarding secessions to give more clarity in the spectrum of the international law.



Image credits: Hans Isaacson on Unsplash