Introduction

The book provides a detailed assessment of Russia’s state practice in the post-Soviet space with the aim to ascertain a distinct Russian approach to the right of peoples to self-determination, illustrated by seven case studies on the secessionist conflicts over Abkhazia, Chechnya, Crimea, Nagorno-Karabakh, South Ossetia, Tatarstan, and Transnistria. As such, it may serve as a detailed documentation of the raw material necessary to form and identify rules of customary international law, produced by one particular state. Beyond that, it seeks to test the accuracy of and give substance to Lauri Mälksoo’s general assessment in Russian Approaches to International Law that the ‘evolution of Moscow’s legal argumentation and views in these complex cases … has not followed some overarching legal principle but reflected changing power politics. Until 2014, Russia claimed that sovereignty trumped self-determination but in 2014 partly destroyed its own earlier argumentation by its own actions in Ukraine.’ Finally, this book is a contribution to what Mälksoo calls the ‘debatable nexus’ between legal scholarship and state practice of international law in Russia, that is the open question of to what extent international law as an academic discipline continues to be subjugated to the raison d’état in Russia.

Russia, the Right to Self-Determination and Secession

Chapter 3 is the second of three chapters analysing Russia’s post-Soviet state practice with regard to the right to self-determination. It argues that prior to Kosovo’s declaration of independence in 2008, Russia’s state practice in the four major secessionist conflicts outside the Russian Federation’s territory (Abkhazia and South Ossetia in Georgia, Nagorno-Karabakh in Azerbaijan, and Transnistria in Moldova) was relatively consistent, notwithstanding valid critique of hypocrisy. With the recognition of Abkhazia and South Ossetia as independent states shortly after Kosovo’s declaration of independence, Russia’s approach arguably changed, although the underlying legal view was consistent with its position in the Kosovo case in front of the International Court of Justice, where Russia did not deny Kosovo recognition 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’ or ‘unique’ case that cannot be compared with other secessionist conflicts. The case studies furthermore show that Russia started to construct its own legal framework to justify its actions.

Post-Soviet Russian Scholarship on Self-Determination

Chapter 5 covers the post-Soviet Russian scholarship on self-determination and shows how it forms a separate epistemic community, with peculiar features and doctrinal positions having existed already prior to Russia’s annexation of Crimea, and the willingness to adjust these positions to official assessments of the Russian government, if necessary. Even before the annexation of Crimea, the discourse on self-determination in Russian scholarship showed some distinctive features, of which most can be explained by a lasting legacy of the former Soviet doctrine of international law, in particular the position that the right to self-determination may in principle also confer a right of secession. In sum, these features stayed however more or less inside the canon of the ‘invisible college of international lawyers’, as Oscar Schachter once famously called it. Only with ‘Crimea’, the company arguably parted again, and once Russia’s actions on the peninsula made it impossible for Russian scholarship to stay within the consensus view without criticizing the Russian government, former consensus was partly replaced by historical-irredentist claims, creative re-readings of self-determination, and attempts in revitalizing the concept of consolidation of historical titles. Moreover, the assessment of ‘Crimea’ in Russian international law scholarship clearly shows that the views expressed in the academic debate by and large correlated with the official positions purported by the Russian government (although criticism was not completely absent, and in particular scholars from the younger generation in Russia were not all ready to accept the official interpretation of the events).

The Soviet Doctrine on the Right to Self-Determination Revisited

This chapter provides a critical rereading of the history of self-determination by revisiting the Soviet Union’s contribution to its evolution from a political principle to an international legal right. It argues that the history of the right to self-determination as a concept of international law starts with the Russian Revolution and not with Wilson’s famous Fourteen Points. Moreover, it highlights that the Soviet Union was the decisive force behind the codification of the right to self-determination in international legal instruments following the Second World War, while at the same time it modified or even perverted its meaning and content in its sphere of influence, most notoriously through the later so-called Brezhnev Doctrine. A discussion on how self-determination was theorized and debated in Soviet international law scholarship up until the collapse of the Soviet Union completes the picture.

Russia, the Right to Self-Determination and Annexation

Chapter 4 is the last of three chapters analysing Russia’s post-Soviet state practice with regard to the right to self-determination. It shows how Russia (ab)used the right of peoples to self-determination as a pretext to justify territorial acquisitions by the threat and use of force, in particular in the context of Russia’s annexation of Crimea in 2014, but also in its retrospect evaluation of the Soviet Union’s annexation of the Baltic states in 1940. Apart from a ‘referendum’, Russia’s main legal argument for the legality of Crimea’s incorporation into the Russian Federation 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. As in the cases of South Ossetia and Abkhazia, the claim of a right of secession had however no sufficient factual basis, although the underlying legal view—that the right of peoples to self-determination may confer a right of secession in ‘extreme situations’—was consistent with earlier state practice. ‘Crimea’ arguably marked a shift away from legal argumentation towards recourse to eclectic historical claims and restoration of hegemonic power, in which the right of peoples to self-determination continues to function as a central legal argument, but legal reasoning more generally loses its dominant position in the official justification of Russia’s state practice in the post-Soviet space.

Final Conclusions

The book concludes with the suggestion that Russia’s approach to the right of peoples to self-determination may be best understood not only in terms of Russian power politics disguised as legal rhetoric but can be seen as evidence of traits of a regional (re-)fragmentation of international law. 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 seems almost unattainable, to the effect that international law as a single epistemological frame is arguably in a similar danger as during Soviet times. Today, apart from Lauri Mälksoo’s work and occasional contributions by a handful of other scholars in the West, analyses of Russia’s post-Soviet state practice and doctrine in the international legal discourse usually confine themselves to assess the legality of Russia’s actions in terms of positive international law. Such a limited approach fails to attempt to understand diverging views on international law, something which was perceived as self-evident during the Cold War period.

Russia, the Right to Self-Determination and Sovereignty

Chapter 2 is the first of three chapters analysing Russia’s post-Soviet state practice with regard to the right to self-determination in the territory of the former Soviet Union. It shows that for situations inside the Russian Federation, the Russian constitutional order acknowledges the right of peoples to self-determination, albeit strictly within its territorial boundaries and with a sometimes unusual or even flawed argumentation. In the Russian Constitution, the right of peoples to self-determination appears in two central provisions, but unlike its Soviet predecessors, it does not recognize a constitutional right of secession. Furthermore, the right to self-determination of a single ethnic group in Russia is said to be always trumped by Russia’s state sovereignty and territorial unity. Consequently, a right of secession is also dismissed in Russian constitutional doctrine. Two case studies on the conflicts over Chechnya and Tatarstan confirm this general assessment. In both cases, the Russian Constitutional Court discussed the relationship between the right to self-determination and Russia’s territorial integrity in two separate court decisions, and in both instances arrived at the conclusion that international law does not provide for a right of secession.