What if…? Self-determination of peoples and the Crimean crisis: imagining an alternative scenario

Russia’s annexation of Crimea met with widespread condemnation among international lawyers. And it could not have been otherwise. Russian behavior in the Crimean crisis epitomizes the kind of power politics which is deadly to international law. As a consequence, international law scholarship has tended to look down on legal arguments employed by Russia and Crimean irredentists to support their case, including the one leveraging on self-determination. This is indeed regrettable because the majority of the Crimean population seemed to be in favor of annexation to Russia. Such an element (of course, controversial) should have prompted greater respect for the self-determination argument. On these assumptions, we intend to investigate whether the Crimean claim for self-determination has any basis in international law. However, since we believe that Russian coercive intervention inevitably distorted the legal framework of this crisis (by turning it into a “use of force” issue) and seriously undermined the international reputation of the Crimean cause, we will imagine an alternative scenario where such an intervention never took place. In other words, we will try to figure out whether – in the absence of forcible outside interference – the will expressed by Crimean institutions and its people to (re)unite with Russia would have had some weight under international law. Mainstream scholarship answered in the negative, on the two-fold ground that the Crimean case a) did not fit with any of the legitimate hypotheses of self-determination codified by international practice, i.e. colonial/alien/racist domination; b) did not meet the conditions required by the “remedial secession” doctrine. This is because these authors look at the principle of self-determination as a “rule”, whose content has been crystallized through the combination of state practice and opinio juris. In our opinion, the main problem with this view lies in its failure to consider that the principle of self-determination is inherently indeterminate. Accordingly, in order to draw from it concrete precepts, a policy-oriented choice is always required. This inevitably raises a string of questions. Who takes part in such a decision-making process? How is the latter carried out? What substantive principles direct the choices of decision-maker(s)? Our working hypothesis is that, in the quest for a solution to these queries, a valuable contribution may be offered by the policy-oriented jurisprudence of the New Haven School (NHS), whose focus on the dynamics of the law-making “process” is widely known. This would be beneficial in many respects. First, it would allow bringing to the limelight the role played by non-state entities (such as local institutions and insurgents movements) which, while not enjoying formal status of international subjects, have a non-negligible say in self-determination processes. Second, by questioning the “sanctity” of past trends, NHS frees the principle of self-determination from its glorious (but outdated) anti-colonialist past and paves the way for an overall rethinking of what constitutes a legitimate self-determination claim. Third, since it is strongly committed to normative values, NHS does not equate international law with the will of superpowers, but provides a critical framework through which the latter’s international behavior may be scrutinized.