Obama refuses to recognize a Russian Crimea. But is secession illegal?

Crimea is set to hold a referendum on March 16 on whether to secede from Ukraine and join Russia. President Obama says it is illegal according to international law. Western scholars agree.

An Obama administration adviser said Sunday that the United States will not recognize a March 16 referendum in Crimea if it leads to the region's annexation into Russia. The comments further clarify statements made by President Obama Thursday, which claimed that the vote would "violate international law."

But would it?

Both sides, it would seem, have compelling arguments. Russians and Crimeans can argue that the people of Crimea are overwhelmingly Russian and want to be a part of Russia, and other ethnic enclaves such as Kosovo have broken off to form independent nations in the recent past. Western nations including the US argue that Russia has forced the issue by intervening militarily in Ukrainian territory.

The debate boils down to a simple question: Does a region's right to self-determination include a fundamental right to secede?

Western legal scholars suggest that the answer is "no."

International law is necessarily flexible on this point. If parts of a nation decide mutually to break apart, international law generally recognizes this as a fait accompli. "Under international law, a secession is neither a right nor necessarily illegal. It is treated as a fact: a secession either was successful, it was not, or it is still being contested," writes Chris Borgen on the "Opinio Juris" blog.

But international law recognizes a nation's right to exist without being involuntarily dismembered from within. In other words, Texas can't just decide to secede from the United States. If it wishes to secede, it must do so through negotiations with the US and the international community.

"According to international precedent," writes University of Cambridge law professor Marc Weller on the BBC website, Crimea "cannot simply secede unilaterally, even if that wish is supported by the local population in a referendum."

The preference is for regions within nations to work with their central governments to gain more autonomy and greater rights without seceding. "International practice generally seeks to accommodate separatist demands within the existing territorial boundaries," writes Professor Weller.

In a case like Kosovo's, where the local ethnic population was subject to significant repression from the Yugoslavian state, the path to independence took years and remains disputed.

Though NATO intervened on humanitarian grounds, it "did not occupy the territory in consequence of its humanitarian intervention," Weller adds. "Instead, the UN administered Kosovo for some eight years, creating a neutral environment in which its future could be addressed."

The fact is, nothing remotely approaching a humanitarian crisis has ever been reported in Crimea, and Russia has repeatedly recognized Crimea to be a part of Ukraine: in the 1991 Alma Ata Declaration that dissolved the Soviet Union, in the 1994 Budapest nuclear weapons memorandum, and a 1997 agreement that allows Russia to station its Black Sea fleet in Crimean ports.

Russia's current intervention appears to be something from its post-Soviet playbook, pitting ethnic Russian enclaves against former Soviet states.

Russia sought to drive a wedge between the thin, Russian-majority strip of Moldova called Transnistria, which Monitor contributor Dylan Robertson referred to as "a Moscow-backed puppet state." The same narrative has played out in the region of Nagorno-Karabakh (claimed by both Armenia and Azerbaijan), as well as in the Georgian regions of Abkhazia and South Ossetia, which Russia invaded in 2008.

Crimea seems likely to be added to the list, with Crimea set to join Russia in a move that the international community rejects.

That Russia should be arguing so strongly on behalf of Crimea's right to secession is, in some ways, ironic.

Crimea enjoys a special status within Ukraine – one that offers it a wide degree of autonomy. Such autonomous regions are a feature of post-Soviet states including Russia – an acknowledgment of the tremendous diversity within each nation. Yet independence movements within Russian autonomous regions – such as Chechnya, Dagestan, and Ingushetia – have been put down, at times brutally, by the Russian military.

This apparent double-standard has some former Soviet states worried. When Estonian authorities moved a Soviet-era war monument, ethnic Russians – who make up a quarter of the population – were outraged, and the country was hit by devastating cyberattacks. Estonian officials blame Russia, though Russian officials have denied involvement.

Estonia and its Baltic neighbors "are certainly very worried that what is happening to Ukraine today could happen to them tomorrow," Erik Brattberg, a senior fellow at the Atlantic Council, told The Atlantic. Both Estonia and Latvia, he noted, have "significant Russian ethnic minorities."