Crimea – Who Defines Self-determination?
In the 17th century, Thomas Hobbes in his magnum opus Leviathan argued that the subjects cannot change the sovereign without the sovereign’s permission. This seems to be a viewpoint close to the present Kremlin’s heart. Why else would they call the current government in Kiev unlawful, a product of an armed rebellion?
What is the actual state of play pertaining to the legitimacy of the Interim President and government of the Ukraine, both appointed by the Verkhovna Rada? No doubt, the Ukrainian constitution is not without shortcomings. Namely, the founding act fails to provide for a hypothetical situation in which the president flees to the territory of another nation without intention to return and at the same time the government in office resigns.
Ukrainan interim government is legitimate
The lack of an explicit regulation of the above scenario does not render the people’s representative body – the Verkhovna Rada of Ukraine (Supreme Council of Ukraine) – unlawful. The Supreme Council has a constitutional right to remove the sitting president and call for an early presidential election. The decision of whether or not the parliament’s resolutions are constitutional has to be made by the Constitutional Court of Ukraine. Thus, legislation in the Ukraine provides for a frame reference to the process of deciding on the constitutionality of any particular legislative act.
Legitimacy of the Estonian state questioned?
It is especially uncanny when a question of legitimacy of Ukraine’s current administration is brought up in Estonia. Relevant sentiments have been formulated by the mayor of Tallinn Edgar Savisaar. With his his recent statements, Mr. Savisaar has placed himself in the competence of the Constitutional Court of Ukraine and, most likely in an inadvertent manner, questioning the legitimacy of the Estonian state and its government. Let’s remember here that what serves as the birth certificate for our nation is the Manifesto to the Peoples of Estonia of 1918. This document, however, contains no reference whatsoever to any laws based on which power was seized and a new body politic established.
In adopting the Manifesto, the Estonian Provincial Assembly rested solely on the right of a people to define themselves – a self-determination right explicitly not provided for in international legislation neither currently nor a hundred years ago. Is the Republic of Estonia unlawful as its founding document is not grounded on preceding laws? By the way, the Finnish declaration of independence was based on the Swedish constitution of 1772. The latter constitution prescribed the following: should the ruling house have no male heirs, the parliament must, on its own initiative, elect a new monarch.
Supreme power of state is vested in the people
The right of self-determination of people, although unequivocally undefined in international law, is all the more important in documents providing for statehood. Namely, the self-determination principle of a people derives from the premise that the supreme power of any state is vested in the people. This principle is provided for in the constitution of democratic nations – for example, in paragraph 1 of the Estonian constitution and paragraph 5 of the Ukrainian constitution.
Indeed, if supreme power is vested in the people, how can such power be restricted by bygone laws or in the end anything at all? Returning to Hobbes, we must admit that, in the current case, the sovereign itself – the people through their representatives in the Verkhovna Rada – has granted permission to change the sovereign.
In a most paradoxical manner, attempts are being made to take advantage of the situation in the Ukraine proceeding from nothing else than the same right of self-determination of every people. Sustained by Russian armored vehicles, relevant steps were recently taken in Crimea for a plebicite to determine the stately future for Crimea. Moscow, most likely, may have even grander dreams.
This is the reason why international law never expressly provides for the right of self-determination. It is out of the question that the subjects of international communication, i.e. states, would agree on the right of every people to self-determination, including the said freedom of nations without independent statehood. The principle based on which supreme power in a state is vested in the people will indeed forever hold true in the democratic world.
Intervention grounded only in certain circumstances
Western countries have reputedly, on repeated occasions, forcefully intervened in the domestic affairs of various nations. Each of these occasions were grounded in circumstances that outweighed the violation of a nations’ sovereignty – crimes against humanity in the former republics of Yugoslavia, suspected possession of weapons of mass destruction (the latter pertaining to Iraq where the suspicions proved unfounded, except for chemical weapons which Saddam was using on the country’s peaceful citizens).
Nothing of the sorts is happening in the Ukraine. Reference has not been made to crimes against humanity and the nation voluntarily surrendered its nuclear weapons already two decades ago. The story thus arrives at a simple conclusion. From the viewpoint of international law, the matter at hand is an internal affair of the Ukraine and the Ukrainians will decide what is legitimate and what is not. However, we should also consider the moral aspect of the problem.
Question of power
What is at the heart of the events in the Ukraine is the question of power. Who holds or should hold the power and the authority? Is it the former president Viktor Yanukovych who at a press conference in Rostov-on-Don stated “the Ukraine to be our strategic partner”? “Us” in this context referring to those that see the world through Moscow’s eyes? Russian citizens? Who is the people that should hold the entirety of power in the Ukraine? In Crimea. In Catalonia. In Narva?
The international legal system never risks an unconditional acknowledgment of the right of self-determination as a moral principle which people may, regardless of the circumstances, harness as they see fit because it threatens the most sacred notion of all – territorial integrity of nation-states.
Still, from the standpoint of inviolability of the state border, the Ukraine at any case should have the right to decide its affairs on its own. Finally, Ukrainians and Crimean Tatars are entitled to determine their future without falling back on any provision of international law at all. It should suffice to proceed from the right of every native people to their homeland.