The road to independence can, and in most cases will, lead through civil war and conflict. It is very rarely that a declaration of independence from a state is handled as peaceful and constructive as the segregation of the former Republic of Czechoslovakia was handled by dissolving in the Czech Republic. Examples of violent processes and responses to declaring independence are unfortunately far more common. Ireland, Rhodesia and the Balkan States in former Yugoslavia from sad examples of the destructive and aggressive way of handling declarations of independence, making most declarations unilateral by default.
Sections of Ukraine have attempted to declare independence unilaterally by means of uprising, denouncing the rule and constitution of Ukraine, a referendum and installing a new governing body under the rule of the self-declared republic in full independence of state of Ukraine. Since Ukraine has no federal governing bodies and its constitution stipulates that such process can only be executed by approved law from the central government or referendum which is to be initiated by the central government and would have to include the entire country, unilaterally initiating the intention to declare independence from the state of Ukraine remains the only alternative for regions within Ukraine.
In its 2010 advisory opinion on the Unilateral Declaration of Independence by Kosovo, the International Court of Justice came to the conclusion that there is no international law or treaty which would prohibit a region from unilaterally declaring its independence from a state. In short, this advisory opinion would also apply to the Unilateral Declaration of Independence by Luhansk Oblast and Donest Oblast, even if the Minsk 2 Protocol states that these regions basically are to remain within Ukraine under certain but undetermined levels of autonomy.
The best way forward to achieve independence for the South East of Ukraine, and hopefully the path without initiating further devastating conflict in the region, is to apply for a United Nations ruling followed by an UN sponsored referendum for and in these regions. To make this referendum representative and binding, all registered residents of Luhansk and Donetsk Oblasts as of March 2014 should be entitled to vote under strict observation of the UN. Preferably even after implementing a buffer zone by UN mandated peacekeepers to ensure no party will obstruct or influence the process by conflict. On the other hand, such an UN sponsored proceeding will also silence those who prefer to abuse the will of the population of Donbass for their own political purposes.
And this is the biggest challenge for South-East Ukraine. The United Nations Security Council will most likely not be able to adopt a resolution about the right of Donbass to issue its Unilateral Declaration of Independence with the veto powers of its permanent members being (ab)used to fulfill their own agendas as we have seen so many times before. Nevertheless, Donbass could (and should) seek sponsorship for such a resolution from Russia and China and advocate getting support from other states like Croatia and Bosnia which have declared independence against the will of the state they were part of.
There is no guarantee of success although there is a solid legal base to obtain independence by UDI and the so called “Kosovo Precedent” advisory opinion by the ICJ. But as Johan Cruyff said long ago “you will never score when you don’t try”.
This said, I would like to briefly go in to the many questions I received about UDI and Crimea. UDI does not apply to Crimea for the following reasons:
- Crimea, as an autonomous republic, had a ratified constitution which provides conditions and stipulations for the path Crimea has chosen.
- Crimea, as a former Soviet Republic, was deprived of its right to determine its own future under article 72 of the Soviet Constitution and had all legal right to execute this right which it did.
- Crimea neither had any intention nor any need to declare independence and form its own state.
Crimea, based on its own constitution and the rights it claimed as former Soviet Republic under the Constitution of the Soviet Union, has chosen to undo a unconstitutional decision to put it under administrative ruling of the Soviet Republic Ukraine.