¹ The referendum took place on 16 March 2014. Results reported by election officials indicated ninety-five percent of votes in favor of joining Russia, based on eighty percent of papular participation. See BBC, Crimea Referendum: Voters “Back Russia Union,” (Mar. 16, 2014), http://www.bbc.com/news/world-europe-26606097 (last accessed June 18, 2015); BBC, Crimea Exit Poll: About 93% Back Russia Union, (Mar. 16, 2014), http://www.bbc.com/news/world-europe-26598832 (last accessed June 18, 2015).Google Scholar

² Here and throughout, the term “normative” is used in its moral-philosophical sense, not in Its legal-juridical sense.Google Scholar

³ See, infra note 10.Google Scholar

⁴ See, infra note 7.Google Scholar

⁵ For a taxonomy and review of those different theories, see Buchanan, Allen, Theories of Secession, 26 Phil. & Pub. Affs. 30 (1997); Moore, Margaret, Introduction: The Self-Determination Principle and the Ethics of Secession, in National Self-Determination and Secession 1 (Margaret Moore ed., 1998).Google Scholar

⁶ For the former type of criticism, see Buchanan, supra note 5. For the latter type of criticism, see Moore, supra note 5.Google Scholar

⁷ See Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004); Moore, supra note 5.Google Scholar

⁸ See, infra Part F.Google Scholar

⁹ Such as the principle that only national groups can have valid secessionist and territorial claims —as nationalist theorists of secession would argue—or that the legitimacy of an existing state is a sufficient condition not to violate its territorial integrity—as just-cause theorists of secession would argue. For examples of nationalist theories, see Margalit, Avishai & Raz, Joseph, National Self-Determination, 87 J. Phil. 439 (1990); Miller, David, Secession and the Principle of Nationality, in National Self-Determination and Secession 62 (Margaret Moore ed., 1998); Kymlicka, Will, Territorial Boundaries: A Liberal Egalitarian Perspective, in Boundaries and Justice: Diverse Ethical Perspectives 249 (Miller, David & Sohail Hashmi eds., 2001). For an example of just-cause theory, see Buchanan, Allen, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (1991); Buchanan, supra note 7.Google Scholar

¹⁰ For such comprehensive defenses, see Altman, Andrew & Wellman, Christopher, A Liberal Theory of International Justice (2009); Beran, Harry, A Democratic Theory of Political Self-Determination for a New World Order, in Theories of Secession 33 (Percy B. Lehning ed., 1998); Copp, David, Democracy and Communal Self-Determination, in The Morality of Nationalism 277 (McKim, Robert & Jeff McMahan eds., 1997); Philpott, Daniel, In Defense of Self-Determination, 105 Ethics 352 (1995); Wellman, Christopher, A Theory of Secession: The Case for Political Self-Determination (2005).Google Scholar

¹¹ See, infra notes 12–13.Google Scholar

¹² See the nationalist theories advanced by Margalit & Raz, supra note 9; Miller, supra note 9; Kymlicka, supra note 9.Google Scholar

¹³ See Altman & Wellman, supra note 10, at 47; Beran, supra note 10, at 42; Copp, supra note 10, at 278, 289; Philpott, supra note 10, at 365-66; Wellman, supra note 10, at 112.Google Scholar

¹⁴ See sources cited, supra note 10.Google Scholar

¹⁵ For more on just-cause theories, see Buchanan, supra note 9; Buchanan, supra note 7.Google Scholar

¹⁶ Beran, supra note 10, at 32, 36, 38–39Google Scholar

¹⁷ See id. at 39.Google Scholar

¹⁸ For more on the distinction between Westphalian and past-Westphalian conceptions of state sovereignty, see discussion infra Part E, and David Held, Democracy: From City-States to a Cosmopolitan Order, 40 Pol. Studs. 10 (1992).Google Scholar

¹⁵ See Buchanan supra note 9, at 108-09; Buchanan, supra note 7, at 219, 231.Google Scholar

²⁰ Beran, supra note 10, at 35.Google Scholar

²¹ Copp, supra note 10, at 278, 293,Google Scholar

²² Id. at 282.Google Scholar

²³ Copp, David, International Law and Morality in the Theory of Secession, 2 J. Ethics 219, 229 (1993).Google Scholar

²⁴ Id. at 227.Google Scholar

²⁵ Id. Google Scholar

²⁶ Philpott, supra note 10, at 355.Google Scholar

²⁷ Id. at 370.Google Scholar

²⁸ ld. Google Scholar

²⁹ id. at 370, 376.Google Scholar

³⁰ Id. at 370-71 n. 37.Google Scholar

³¹ Philpott, supra note 10, at 370.Google Scholar

³² See Wellman, supra note 10, at 14–15; Nozick, Robert, Anarchy, State, and Utopia 10–53 (1974); Buchanan, supra note 5, at 47.Google Scholar

³³ Philpott, supra note 10, at 362, 364.Google Scholar

³⁴ Altman & Wellman, supra note 10, at 46, Adequate protection of human rights is hereafter referred to simply as “adequate protection.”Google Scholar

³⁵ Wellman, supra note 10, at 37.Google Scholar

³⁶ Id. at 37–38.Google Scholar

³⁷ Wellman, supra note 10, at 179; Altman & Wellman, supra note 10, at 52–53.Google Scholar

³⁸ See discussion, infra Part E.Google Scholar

³⁹ See Buchanan, supra note 7, at 219, 231; Bishai, Linda, Forgetting Ourselves: Secession and the (Im)possibility of Territorial Identity 74–75 (2004),Google Scholar

⁴⁰ Buchanan, supra note 9, at 108-09; Buchanan, supra note 7, at 219.Google Scholar

⁴¹ One might object that using the principle of community property to build this analogy is question-begging: Why pick this principle rather than other possible principles of marriage contracts? Because the principle of community property constitutes a middle ground between the two extremes of complete merging and complete separation of assets. Thus, the burden of proof here is on those claiming that a more extreme principle should be used. Of course, opting for complete separation of assets would only reinforce the secessionists’ case.Google Scholar

⁴² Otherwise put, what makes a group the same group over time is not a matter of what the group is—matching some set of objective criteria—but rather a matter of what the group does—engaged in sustained social and political cooperation,Google Scholar

⁴³ This article's territorial account is in some respects similar to, yet in other respects crucially different from, an account offered by Anna Stilz. See Stilz, Anna, Nations, States, and Territory, 121 Ethics 572, 578, 588-89 (2011). For specific differences between the two accounts, see, infra notes 45 and 47.Google Scholar

⁴⁴ Cf. Oklopcic, Zoran, The idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights and Constitutional Paradoxes, 16 German L.J. 658 (2015).Google Scholar

⁴⁵ Here this article's territorial account parts ways with Stilz's, which precludes the permissibility of secession arguably, inconsistently. See Stilz, supra note 43, at 597, 600. Indeed, the required rights of free association, free speech, and political participation would imply the rights for a group to select its political representatives and to form parties advocating secession as well as local governments holding plebiscites on the possibility of secession. If those measures are permitted, then respecting the democratic process would seem to require granting secessionists negotiations, should the majority be in favor of secession. See Norman, Wayne, Domesticating Secession, in Secession and Self-Determination 193, 207 (Macedo, Stephen & Allen Buchanan eds., 2003). Indeed, this is the position adopted by the Canadian Supreme Court in its 1998 “Reference” on the Quebec secession issue. See Buchanan, supra note 7, at 224.Google Scholar

⁴⁶ Note that choice theorists’ exclusion of nationalist arguments from the set of normatively relevant considerations to determine the permissibility of secession does not mean that national groups, such as the Scots, cannot qualify for permissible secession on a choice account. As long as the new state would meet the choice criteria of viability and of human rights protection, secession is permissible. But it is permissible in virtue of the fulfillment of those criteria, and not in light of the fact that the group is a national group.Google Scholar

⁴⁷ Here this article's territorial account further departs from Still's, according to which the relevant type of group is that which results from the formation of the state. See Stilz, supra note 43, at 579–80.Google Scholar

⁴⁸ Note that settling the territorial question—who has a valid claim to what territory—does not yet settle the question of secession. As mentioned at the outset, the aim of this article is not to provide a comprehensive account of morally permissible secession. In addition to the territorial component which has been the focus of this article, other considerations would have to be taken into account in order to establish a full moral case in favor of secession—for example, a peaceable and transparent referendum, the viability of the remainder state, fair terms of separation regarding economic and natural resources, etc. Thus, having a valid territorial claim is a necessary but not sufficient condition for secession to be permissible.Google Scholar

⁴⁹ It is a prima facie case because other considerations might override it. See, supra note 48.Google Scholar

⁵⁰ See also, MacLaren, Malcolm, “Trust the People”? Democratic Secessionism and Contemporary Practice, 16 German L.J. 631 (2015).Google Scholar

⁵¹ One might abject that there are minorities within the Crimean territory that might not support the secession of Crimea. See Roth, Brad R., The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention, 16 German L.J. 384 (2015); Roznai, Yaniv & Suteu, Silvia, The Eternal Territory? The Crimean Crisis and Ukraine's Territorial Integrity as an Unamendable Constitutional Principle, 16 German L.J. 542 (2015). See also, Oklopcic, supra note 44. But the problem of “trapped minorities” is not specific to newly seceded polities; it is a reality that many polities, old and new, have to face. Moreover, secession would alleviate, rather than exacerbate, the problem. Secession indeed frees a minority from the old polity in which it was previously trapped. So a concern for trapped minorities supports, rather than undermines, the case for secession. See MacLaren, supra note 50.Google Scholar

⁵² Jennings, Ivor, The Approach to Self-Government 56 (1956).Google Scholar

⁵³ See sources cited supra note 51; MacLaren, supra note 50; Umut Özsu, Ukraine, International Law, and the Political Economy of Self-Determination, 16 German L.J. 434 (2015).Google Scholar

⁵⁴ This is not to say that one should ignore the normatively problematic self-serving motives that underlie the rhetoric of self-determination used by some secessionist groups and their supporters or opponents, See Öszu, supra note 53. But those can be countered or neutralized by requiring that certain conditions be met far secession to be permissible—for example, a peaceable and transparent referendum, the viability of the remainder state, fair terms of separation regarding economic and natural resources, etc. Google Scholar

⁵⁵ Mill, John Stuart, Considerations on Representative Government, in Utilitarianism, on Liberty, Considerations on Representative Government 392 (H.B. Acton ed., 1972) (1862). See also, MacLaren, supra note 50, at 634.Google Scholar

⁵⁶ Buchanan, supra note 5, at 32.Google Scholar

⁵⁷ Buchanan, supra note 7, at 27.Google Scholar

⁵⁸ Buchanan, supra note 5, at 42–44.Google Scholar

⁵⁹ See id. at 44–54.Google Scholar

⁶⁰ Altman & Wellman, supra note 10, at 53–58; Weinstock, Daniel, Constitutionalizing the Right to Secede, 9 J. Pol. Phil. 182, 183 (2001).Google Scholar

⁶¹ Buchanan, supra note 5, at 49.Google Scholar

⁶² See id. at 47.Google Scholar

⁶³ Catala, Amandine, Remedial Theories of Secession and Territoriol Justification, 44 J. Soc. Phil. 74 (2013).Google Scholar

⁶⁴ Weinstock, supra note 60, at 185.Google Scholar

⁶⁵ Relatedly, the existence of a moral right does not depend on how easy or difficult it would be to realize that right. If you are a millionaire, it might be very easy for you to give me $100, but that does not mean I have the right to receive $100 from you. Conversely, if you hit me with your car and you have no insurance, it might be very difficult for you to compensate me appropriately, but that does not mean that I do not have the right to receive appropriate compensation.Google Scholar

⁶⁶ Altman & Wellman, supra note 10, at 62.Google Scholar

⁶⁷ Cf. Roth, supra note 51.Google Scholar

⁶⁸ See Vidmar, Jure, The Annexation of Crimea and the Boundaries of the Will of the People, 16 German L.J. 365 (2015); MacLaren, supra note 50.Google Scholar