ZOiS Spotlight 13/2021

Russia and the right of peoples to self-determination

by Johannes Socher 07/04/2021
A street banner in South Ossetia marks the 10th anniversary of Russia recognising its independence from Georgia. IMAGO / ITAR-TASS / Valery Sharifulin

Russia’s relationship to the right of peoples to self-determination is a complex one. Historically, its development from a political principle to an international legal right owes much to the Soviet Union. At the same time, its meaning and content were modified or even perverted within the Soviet sphere of influence. For example, the Red Army’s invasion of Czechoslovakia in 1968 was justified with the purported existence of a “socialist right to self-determination” which had to be protected, if necessary by military means.

In essence, the right to self-determination means that all peoples may freely determine their political status and freely pursue their economic, social and cultural development. In the Constitution of the Russian Federation, the right appears in two central provisions. Unlike its Soviet predecessors, however, the Russian Constitution does not recognise a constitutional right of secession, and such a right for the subjects of the Russian Federation is consequently also dismissed in Russian constitutional doctrine. This general assessment was confirmed in two early decisions of the Russian Constitutional Court in which the right to self-determination was discussed as a principle of international law but was ultimately deemed to be subordinate to Russia’s state sovereignty and territorial integrity.

Outside its territorial borders, Russia’s state practice with regard to the right to self-determination was relatively consistent until Kosovo’s declaration of independence from Serbia in 2008. Until then, Russia had considered itself bound by the various international treaties in which the former Soviet republics had committed themselves to recognising and respecting each other’s territorial integrity and inviolability of borders. In particular, Russia did not recognise any of the four breakaway republics as independent states that had emerged during the dissolution process of the Soviet Union: Nagorno-Karabakh in Azerbaijan, Transnistria in Moldova, and Abkhazia and South Ossetia in Georgia. On the other hand, Russia shaped the negotiation processes of all four secessionist conflicts as a mediator and secured the conflict parties’ agreement to the deployment of Russian peacekeeping forces. Considerable military, political and economic  support led the European Court of Human Rights, for instance, to conclude that Russia had effective control over the authorities in Transnistria, an assessment which Russia plainly denied and repudiated as “politicised”.

Russian state practice after the Kosovo case

With the recognition of Abkhazia and South Ossetia as independent states shortly after Kosovo’s declaration of independence in 2008, Russia’s approach towards the secessionist conflicts in the post-Soviet space arguably changed. According to the official Russian reasoning, the population of South Ossetia had a right of secession following the Georgian bombing of the Ossetian town of Tskhinvali during the Russo-Georgian War, a claim that was based on highly exaggerated numbers. The underlying legal view, that the right to self-determination may confer a right of secession in “extreme situations”, was, however, consistent with Russia’s views voiced in the Kosovo case before the International Court of Justice (ICJ). Russia’s written statement to the ICJ clearly shows that it did not deny Kosovo recognition as an independent state because of a different view on self-determination and secession but because it refused to accept the logic of some states which viewed Kosovo as a “special” case that cannot be compared with other secessionist conflicts.

Finally, Russia’s annexation of Crimea in 2014 showed how Russia (ab)used the right of peoples to self-determination as a pretext to justify the incorporation of the peninsula by the threat and use of force. As in the case of South Ossetia, Russia’s main legal argument was based on the reading that the Ukrainian Revolution had created an “extreme situation” in which Crimea’s right to self-determination could not be exercised any longer in the constitutional framework of Ukraine

Russian and international discourses on the right to self-determination

Even before the annexation of Crimea, the discourse on the right to self-determination in Russian scholarship of international law showed some distinctive features. To some extent, they can be explained by a lasting legacy of the former Soviet doctrine of international law, in particular the view that the right to self-determination may in principle also confer a right of secession. Until 2014, however, these features stayed more or less inside the international doctrinal canon. This changed only with the annexation of Crimea, once Russia’s actions made it impossible to stay within the consensus view without criticising the Russian government. Instead, Russia’s most influential international lawyers justified Crimea’s annexation on the basis of historical-nationalist claims and creative re-readings of the right to self-determination.

In sum, Russia’s approach to the right of self-determination could of course be regarded as power politics disguised as legal rhetoric. Arguably, a more insightful way of interpreting Russia’s approach to self-determination would be to understand it as an expression of continuous hegemonic ambitions in the post-Soviet space, based on balance-of-power considerations. Understood that way, the question arises whether such an approach potentially challenges the fundamental claim of international law to have universal validity. The lack of even basic agreement on what self-determination as a concept of international law means and what role related concepts such as territorial integrity, secession, referendum or the prohibition of the use of force do or should play in that context indicates that not even basic consensus exists that would facilitate a shared understanding of international law in and outside Russia. Arguably, the way towards such a universal frame of reference can only lead via conscious efforts to bridge such divides.

Johannes Socher is a Research Fellow at Freie Universität Berlin. His dissertation Russia and the Right to Self-Determination in the Post-Soviet Space was awarded the Klaus Mehnert Prize 2020 and is a forthcoming publication by Oxford University Press.