Many Fridays we take a single puzzling question on contemporary political violence and take a go at answering it together. This Friday, I’m going to alter that format a bit and offer answers to your questions regarding the conflict over secession and recognition in Ukraine. As it turns out, my forthcoming book addresses just this kind of international political wrangling over self-determination and, if I can, I’m happy to help clarify the situation.
I’ll start with a question from Twitter:
@PVGlance – Why doesn’t the US support the ref. for Crimean secession? How is it different from Sudan? West says they won’t recognize. Why?
— Mitch Downey (@MitchDowney1) March 7, 2014
First, as we say on the Internet, “IANAL (I am not a lawyer).” A Lawyer will likely give you a different answer than this political scientist. Still, I am an expert in this particular area of the law, so here goes.
The Obama Administration is not against a referendum on independence for Crimea per se; it is opposed to the particular circumstances surrounding the referendum planned for March 15th. Unlike most constitutions, the Ukrainian constitution actually does contain a provision for a countrywide referendum on issues like secession and territorial change. It requires, in addition to other criteria, that 3 million signatures be collected in support of an issue before a national referendum will be scheduled. This referendum has not met that standard, nor is it planned for the entirety of the Ukraine; instead it appears that the vote will be limited to the population within Crimea. When the Obama administration argues that the referendum violates Ukrainian law, this is likely what they are referring to.
Russia is in violation of international law because it has contravened Ukrainian territorial integrity and sovereignty through its military intervention. There is little grey area here insofar as the law is concerned, but many political scientists question the true power of the sovereignty norm in practice. Stephen Krasner has gone so far as to label it “organized hypocrisy” because state leaders violate the norm so often. Any referendum that takes place at the barrel of a gun though, is probably not likely to be free or fair in any conventional sense of the term.
This situation is different from that between North and South Sudan along a number of dimensions, but the most relevant is probably that the Bashir government ultimately yielded to international pressure for South Sudan’s referendum in accordance with the CPA and further agreed to abide by the results. Because the decision to separate was decided via a mutually agreed upon domestic process, external recognition was quickly granted to the South. There is no such agreement in this case. And it seems likely that a national referendum would not yield independence for Crimea; even the public within Crimea is not decisively pro-Russian Federation accession.
As for external recognition, this has always (to the chagrin of many international jurists) been up to the discretion of the individual country granting it. Even where there is unambiguous popular sovereignty, outsiders are not compelled by law to recognize its existence or to establish diplomatic relations with the new state (or new government in the case of revolution). As one of the foremost international legal scholars on the topic Gerhard von Glahn argues, diplomatic recognition is really “a political act with legal consequences” and not a purely legal act. This is why some actors that seem like independent states are denied formal membership in the international community and others, perhaps like your South Sudan example, that don’t seem to exercise much control and authority at all nevertheless have full seats in the United Nations.
 International law has a much stronger normative bent than political science.