Rhetoric particularly regarding political autonomy and freedom is always dicey for states and governments. The rhetoric is useful in that it helps with the ‘feel good’ factor — promoting aspirations and ideals that can help people come together. It makes the illusion of cohesiveness easier on the eye. But states and governments are often a victim of the same rhetoric. Ukraine is a latest example of this.
But let no one tell you that the repercussions of the Crimea issue are limited in time or space.
A quick background: We know that Ukraine is a unitary state. Crimea is one of the units of the Ukrainian republic. However, Crimea has been treated by Ukraine as an autonomous region and Crimea’s designation has been Autonomous Republic of Crimea. It has had its own constitution but this constitution, since Crimea became part of Ukraine, has functioned in accordance with the laws of Ukraine, i.e. in matters of conflict the Ukrainian constitution’s provisions have prevailed over the Crimean one. Through a referendum the people of Crimea have now decided to secede from Ukraine and want to be a part of the Russian Federation. Only the naïve would think that this is not a major issue.
To those interested in issues of constitutional and international law, this is the ultimate case.
To put it simply, an autonomous unit within a state votes in favour of seceding from the state and wants to join another state. If the people want it, what is so wrong with this? The answer: a lot — depending which side you are on.
There are those who will see this simply in terms of principles of democracy. If the majority of the people within a region want to break away from a state, it is their right to self-determination. One could also argue that the UN Charter accepts the right to self-determination too.
But here is where the trouble starts. At issue is not just international law but domestic law too. If your constitution treats a province or a unit as part of your state, would you accept that unit’s right to secede?
In other words, would you stretch the notion of autonomy to include the right to break away? This issue should have particular resonance in Pakistan. After the maltreatment of East Pakistan led to the creation of Bangladesh, would Pakistanis accept if the Baloch (under the slogan and rhetoric of autonomy) voted to secede from Pakistan?
Ukraine’s constitution treats its territorial integrity as inviolable. On the one hand you have a sovereign state’s territorial integrity versus a particular region’s right to self-determination. If you are a Pakistani then the rhetoric of self-determination good for Kashmir (as far as India is concerned) does not sound so good for Pakistan-controlled Kashmir or Balochistan.
Even the UN Charter that talks about a people’s right to self-determination has been framed by nation states. The significance of this fact should not be lost on anyone when debating the legal limits of the right to self-determination. If one argues that the UN Charter values self-determination then one must not forget that it equally values a state’s territorial integrity and non-interference by other states — something that Russia is accused of in the present Crimean crisis.
So what is the legal answer?
Remember that both the Ukrainian constitution and international law are involved. The legal answer is simpler when it comes to the Ukrainian constitution. Crimea’s secession would be unconstitutional — plain and simple. In terms of international law, the question is will supra-constitutional rights trump the supreme legislative document? And there is no legal answer to this — because the answer is political. In fact, the lack of a legal answer to this question also shapes the outcomes under the Ukrainian constitution.
Constitutions are only as strong as the politics and the democracy that underpins them. The rhetoric of constitutions can never impart life to aspirations that are not representative of political realities. Pakistan is a particularly vivid example of this. The civilian supremacy embodied in our constitution has never stopped the military, judiciary or legislature from according legitimacy to the overthrow of elected governments. Similarly, the rhetoric of territorial integrity of Pakistan could not prevent the original Pakistan being ripped apart.
In the case of Ukraine, if people living in Crimea (for whatever reason or motivation) have decided to break away, there is little that will be achieved by screaming that the whole exercise is unconstitutional. When a state loses its grip over politics of a region, it cannot regain control by citing the constitution.
And therefore the rather disturbing reality, but a reality nonetheless, about Crimea’s secession is this: yes it is unconstitutional under Ukraine’s constitution — but so what?
States like the US in such a situation are faced with a fascinating moral dilemma; that is fascinating at least to an outsider. The US itself declared independence from the British rule. The Declaration of Independence and Articles of Confederation (which preceded the Constitution of the United States drafted in Philadelphia) did not have any real legal backing to break away from the British. In fact even the Convention in Philadelphia that led to the drafting of the US Constitution was arguably not envisaged by the earlier Articles of Confederation.
The framers of the US Constitution were men with great foresight and continue to inspire and influence the minds of many — including this writer. But they did not have the law on their side. What they had on their side was the politics of the time. Law was the handmaiden. It was politics that Madison, Jefferson and Washington banked on. It was politics that led to the creation of the United States. What makes the US Constitution what it is today is not the letter of the constitution — it is its spirit which is breathed into it by the politics of Congress, Executive and the US Supreme Court.
America’s protests regarding Crimea, however, still need to be taken seriously since the US is aware that in a system where nation states create and control power, precedents matter. Without any case of ethnic violence or any other kind of political violence, if a state’s units can simply secede then this should make states and populations uncomfortable in the rest of the world. Equally important is the fact that such a precedent will give hope to many. The US’s discomfort is based as much on concern for its own power as it is for principle. Russia’s gain is the US’s loss.
In a nutshell, everything is wrong with Crimea’s secession. And yet nothing is. But let’s at least accept that this is about politics. Law has nothing to do with it. Except, perhaps, everything — depending which side you are on.