Международное право: Законен ли был Крымский референдум?

84. Общее международное право не содержит применимого запрета на декларации независимости.
СООТВЕТСТВИЕ ОДНОСТОРОННЕГО ПРОВОЗГЛАШЕНИЯ НЕЗАВИСИМОСТИ КОСОВО НОРМАМ МЕЖДУНАРОДНОГО ПРАВА
Международный суд ООН в Гааге
22 июля 2010

В тексте заключения Верховного суда Канады относительно легитимности, по канадским и международным законам, одностороннего отделения Квебека от Канады содержится ряд положений и ссылок, которые могут быть использованы в качестве аргументов при рассмотрении вопроса о праве на самоопределение Крыма и областей Юго-Востока Украины - например то, что основанием для одностороннего отделения (внешнего самоопределения) может служить отказ в праве на самоопределение внутри государства - "при невозможности осуществления народом права на самоопределение внутри государства, последней мерой для его реализации является отделение" (when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession). Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally. Канадский суд счел, что франкоканадцы имеют такую возможность внутри Канады, но как обстоит дело с Украиной?
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Аллен Бьюкенен "Сецессия. Право на отделение, права человека и территориальная целостность государства":
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Сецессия считается легитимной, если можно показать, что государство несправедливо относилось к отделяющимся. Несправедливость, которая оправдывает отделение - это не только нарушение индивидуальных прав. Серьёзными основаниями для отделения могут быть также дискриминационное перераспределение, нарушения так называемых “прав штатов” (законных, конституционно определённых полномочий политических единиц, входящих в государство или федерацию) и особых прав групп меньшинств (например, права на использование своего языка). Содержательное обоснование несправедливости со стороны государства может считаться конституционным основанием для отделения. ... Те группы, чьи претензии удовлетворяют критериям оправданности отделения, и имеют право на отделение.
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The Court in this Reference is required to consider whether Quebec has a right to unilateral secession.

The Court was also required to consider whether a right to unilateral secession exists under international law.

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A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.

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Although there is no right, under the Constitution or at international law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition.

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(1)  Secession at International Law

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It is clear that international law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their "parent" state. Given the lack of specific authorization for unilateral secession, proponents of the existence of such a right at  international law are therefore left to attempt to found their argument (i) on the proposition that unilateral secession is not specifically prohibited and that what is not specifically prohibited is inferentially permitted; or (ii) on the implied duty of states to recognize the legitimacy of secession brought about by the exercise of the well-established international law right of "a people" to self-determination.

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(a)  Absence of a Specific Prohibition

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International law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination, e.g., the right of secession that arises in the exceptional situation of an oppressed or colonial people. International law places great importance on the territorial integrity of nation states and, by and large, leaves the creation of a new state to be determined by the domestic law of the existing state of which the seceding entity presently forms a part.  Where, as here, unilateral secession would be incompatible with the domestic Constitution, international law is likely to accept that conclusion subject to the right of peoples to self-determination.

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(b)  The Right of a People to Self-determination

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While international law generally regulates the conduct of nation states, it does, in some specific circumstances, also recognize the "rights" of entities other than nation states - such as the right of a people to self-determination.

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The existence of the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond "convention" and is considered a general principle of international law.

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Article 1 of the Charter of the United Nations, Can. T.S. 1945 No. 7, states in part that one of the purposes of the United Nations (U.N.) is:

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Article 55 of the U.N. Charter further states that the U.N. shall promote goals such as higher standards of living, full employment and human rights "[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples".

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This basic principle of self-determination has been carried forward and addressed in so many U.N. conventions and resolutions.

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Article 1 of both the U.N.'s  International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, and its International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, states:

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Similarly, the U.N. General Assembly's Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970 (Declaration on Friendly Relations), states:

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In 1993, the U.N. World Conference on Human Rights adopted the Vienna Declaration and Programme of Action, A/CONF.157/24, 25 June 1993, that reaffirmed Article 1 of the two above-mentioned covenants. The U.N. General Assembly's Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6, 9 November 1995, also emphasizes the right to self-determination by providing that the U.N.'s member states will:

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The right to self-determination is also recognized in other international legal documents. For example, the Final Act of the Conference on Security and Co-operation in Europe, 14 I.L.M. 1292 (1975) (Helsinki Final Act), states (in Part VIII):

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As will be seen, international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states. Where this is not possible, in the exceptional circumstances discussed below, a right of secession may arise.

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(i)  Defining "Peoples"

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International law grants the right to self-determination to "peoples".  Accordingly, access to the right requires the threshold step of characterizing as a people the group seeking self-determination. However, as the right to self-determination has developed by virtue of a combination of international agreements and conventions, coupled with state practice, with little formal elaboration of the definition of "peoples", the result has been that the precise meaning of the term "people" remains somewhat uncertain.

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It is clear that "a people" may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to "nation" and "state". The juxtaposition of these terms is indicative that the reference to "people" does not necessarily mean the entirety of a state's population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose.

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(ii)  Scope of the Right to Self-determination

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The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. External self-determination can be defined as in the following statement from the Declaration on Friendly Relations as

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The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states.

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The Declaration on Friendly Relations, the Vienna Declaration and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations are specific. They state, immediately after affirming a people's right to determine political, economic, social and cultural issues, that such rights are not to

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Similarly, while the concluding document of the Vienna Meeting in 1989 of the Conference on Security and Co-operation in Europe  on the follow-up to the Helsinki Final Act again refers to peoples having the right to determine "their internal and external political status", that statement is immediately followed by express recognition that the participating states will at all times act, as stated in the Helsinki Final Act, "in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States". Principle 5 of the concluding document states that the participating states (including Canada):

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. . . confirm their commitment strictly and effectively to observe the principle of the territorial integrity of States.  They will refrain from any violation of this principle and thus from any action aimed by direct or indirect means, in contravention of the purposes and principles of the Charter of the United Nations, other obligations under international law or the provisions of the [Helsinki] Final Act, at  violating the territorial integrity, political independence or the unity of a State.  No actions or situations in contravention of this principle will be recognized as legal by the participating States.
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Accordingly, the reference in the Helsinki Final Act to a people determining its external political status is interpreted to mean the expression of a people's external political status through the government of the existing state, save in the exceptional circumstances discussed below. Given the history and textual structure of this document, its reference to external self-determination simply means that "no territorial or other change can be brought about by the central authorities of a State that is contrary to the will of the whole people of that State".

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While the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights do not specifically refer to the protection of territorial integrity, they both define the ambit of the right to self-determination in terms that are normally attainable within the framework of an existing state. There is no necessary incompatibility between the maintenance of the territorial integrity of existing states, including Canada, and the right of a "people" to achieve a full measure of self-determination. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

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(iii)  Colonial and Oppressed Peoples

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Accordingly, the general state of international law with respect to the right to self-determination is that the right operates within the overriding protection granted to the territorial integrity of "parent" states. However, there are certain defined contexts within which the right to the self-determination of  peoples does allow that right to be exercised "externally", which, in the context of this Reference, would potentially mean secession:

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The right of colonial peoples to exercise their right to self-determination by breaking away from the "imperial" power is now undisputed, but is irrelevant to this Reference.

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The other clear case where a right to external self-determination accrues is where a people is subject to alien subjugation, domination or exploitation outside a colonial context. This recognition finds its roots in the Declaration on Friendly Relations:

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A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. Although this third circumstance has been described in several ways, the underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration requirement that governments represent "the whole people belonging to the territory without distinction of any kind" adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession.

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Clearly, such a circumstance parallels the other two recognized situations in that the ability of a people to exercise its right to self-determination internally is somehow being totally frustrated. While it remains unclear whether this third proposition actually reflects an established international law standard, it is unnecessary for present purposes to make that determination. Even assuming that the third circumstance is sufficient to create a right to unilateral secession under international law, the current Quebec context cannot be said to approach such a threshold.
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The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of  the international documents that address the right to self-determination of peoples, Canada is a "sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction".

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The continuing failure to reach agreement on amendments to the Constitution, while a matter of concern, does not amount to a denial of self-determination.  In the absence of amendments to the Canadian Constitution, we must look at the constitutional arrangements presently in effect, and we cannot conclude under current circumstances that those arrangements place Quebecers in a disadvantaged position within the scope of the international law rule.

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In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions. Accordingly, neither the population of the province of Quebec, even if characterized in terms of "people" or "peoples",  nor its representative institutions, the National Assembly, the legislature or government of Quebec, possess a right, under international law, to secede unilaterally from Canada.

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We would not wish to leave this aspect of our answer to Question 2 without acknowledging the importance of the submissions made to us respecting the rights and concerns of aboriginal peoples in the event of a unilateral secession, as well as the appropriate means of defining the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by aboriginal peoples. However, the concern of aboriginal peoples is precipitated by the asserted right of Quebec to unilateral secession. In light of our finding that there is no such right applicable to the population of Quebec, either under the Constitution of Canada or at international law, but that on the contrary a clear democratic expression of support for secession would lead under the Constitution to negotiations in which aboriginal interests would be taken into account, it becomes unnecessary to explore further the concerns of the aboriginal peoples in this Reference.

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(2)  Recognition of a Factual/Political Reality:  the "Effectivity" Principle

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As stated, an argument advanced on this branch of the Reference was that, while international law may not ground a positive right to unilateral secession in the context of Quebec, international law equally does not prohibit secession and, in fact, international recognition would be conferred on such a political reality if it emerged, for example, via effective control of the territory of what is now the province of Quebec.

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It is true that international law may well, depending on the circumstances, adapt to recognize a political and/or factual reality, regardless of the legality of the steps leading to its creation.

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No one doubts that legal consequences may flow from political facts, and that "sovereignty is a political fact for which no purely legal authority can be constituted . . .",  H. W. R. Wade, "The Basis of Legal Sovereignty", [1955] Camb. L.J. 172, at p. 196.  Secession of a province from Canada, if successful in the streets, might well lead to the creation of a new state. Although recognition by other states is not, at least as a matter of theory, necessary to achieve statehood, the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states. That process of recognition is guided by legal norms. However, international recognition is not alone constitutive of statehood and, critically, does not relate back to the date of secession to serve retroactively as a source of a "legal" right to secede in the first place.  Recognition occurs only after a territorial unit has been successful, as a political fact, in achieving secession.

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One of the legal norms which may be recognized by states in granting or withholding recognition of emergent states is the legitimacy of the process by which the de facto secession is, or was, being pursued. The process of recognition, once considered to be an exercise of pure sovereign discretion, has come to be associated with legal norms.  See, e.g.,  European Community Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 31 I.L.M. 1486 (1992), at p. 1487. While national interest and perceived political advantage to the recognizing state obviously play an important role, foreign  states may also take into account their view as to the existence of a right to self-determination on the part of the population of the putative state, and a counterpart domestic evaluation, namely, an examination of the legality of the secession according to the law of the state from which the territorial unit purports to have seceded. An emergent state that has disregarded legitimate obligations arising out of its previous situation can potentially expect to be hindered by that disregard in achieving international recognition, at least with respect to the timing of that recognition. On the other hand, compliance by the seceding province with such legitimate obligations would weigh in favour of international recognition. The notion that what is not explicitly prohibited is implicitly permitted has little relevance where (as here) international law refers the legality of secession to the domestic law of the seceding state and the law of that state holds unilateral secession to be unconstitutional.

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As a court of law, we are ultimately concerned only with legal claims.  If the principle of "effectivity" is no more than that "successful revolution begets its own legality" (S. A. de Smith, "Constitutional Lawyers in Revolutionary Situations" (1968), 7 West. Ont. L. Rev. 93, at p. 96), it necessarily means that legality follows and does not precede the successful revolution. Ex hypothesi, the successful revolution took place outside the constitutional framework of the predecessor state, otherwise it would not be characterized as "a revolution". It may be that a unilateral secession by Quebec would eventually be accorded legal status by Canada and other states, and thus give rise to legal consequences; but this does not support the more radical contention that subsequent recognition of a state of affairs brought about by a unilateral declaration of independence could be taken to mean that secession was achieved under colour of a legal right.

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IV.  Summary of Conclusions

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Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced from constitutional obligations. Nor, however, can the reverse proposition be accepted. The continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government, Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities. No one suggests that it would be an easy set of negotiations.

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The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole. A political majority at either level that does not act in accordance with the underlying constitutional principles we have mentioned puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.

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The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution", not to usurp the prerogatives of the political forces that operate within that framework. The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

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We have also considered whether a positive legal entitlement to secession exists under international law in the factual circumstances. Some of those who supported an affirmative answer to this question did so on the basis of the recognized right to self-determination that belongs to all "peoples".  Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of peoples at international law where "a people" is governed as part of a colonial empire; where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state.  A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the National Assembly, the legislature or the government of Quebec do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.

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Although there is no right, under the Constitution or at international law, to unilateral secession, that is secession without negotiation on the basis just discussed, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Such recognition, even if granted, would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.
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Заключение Верховного суда Канады по вопросу о референдуме в Квебеке, 20 августа 1998
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Заключение Международного суда ООН по вопросу о независимости Косово, 22 июля 2010
(краткое изложение на русском языке)
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Robert W. McGee, Secession Reconsidered, the Journal of Libertarian Studies, Fall 1994.
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J. Vidmar, ‘Explaining the Legal Effects of Recognition’ 61 (2) International and Comparative Law Quarterly (2012)
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Nico Krisch, "Crimea and the Limits of International Law", European Journal of International Law, March 10, 2014
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Christian Marxsen, "Crimea’s Declaration of Independence", European Journal of International Law, March 18, 2014
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Anne Peters, "Crimea: Does "The West" Now Pay the Price for Kosovo?", European Journal of International Law, April 22, 2014
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Chris Borgen, "Can Crimea Secede by Referendum?", Opinio Juris, March 6, 2014
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Julian Ku, "Does It Really Violate International Law for Crimea to Hold a Referendum on Secession?", Opinio Juris, March 6, 2014
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Eric Posner, "CAN CRIMEA SECEDE FROM UKRAINE?", MARCH 6, 2014
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Eric Posner, "WOULD RUSSIA’S ANNEXATION OF CRIMEA VIOLATE INTERNATIONAL LAW?", MARCH 8, 2014
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Eric Posner, "Let Crimea Go", Slate, MARCH 10, 2014
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Eric Posner, "THE CRIMEAN SECESSION VOTE", MARCH 15, 2014
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Eric Posner, "GOODBYE, CRIMEA", MARCH 16, 2014
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Eric Posner, "VLADIMIR PUTIN, INTERNATIONAL LAWYER", MARCH 18, 2014
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Eric Posner, "THE KOSOVO PRECEDENT", MARCH 21, 2014
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Eric Posner, "What to Do About Crimea? Nothing", Slate, MARCH 28, 2014
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