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Published online by Cambridge University Press: 06 March 2019
This article focuses on contemporary theories of territorial rights in political and legal philosophy and explores their implications for the case of Crimea, focusing on three main accounts of territorial rights: Liberal nationalist, Lockean, and Kantian. The article advances the legal-political account of the “people” and its territorial rights as a promising approach to theorizing the corporate agents that have potentially valid territorial rights and claims. While normative theory does not yield a single unequivocal judgment that identifies one claimant as the solely justified territorial right-holder in Crimea, the application of general principles of territorial rights theory can help identify the pertinent considerations for the case, which clarify the normative implications of each potential resolution. While no party has an absolutely just territorial claim to Crimea, this article offers a qualified defense of the existence of a distinct “Crimean people,” defined by the distinct political history of Crimea and its long-standing legacy of autonomous legal-political institutions, which may constitute a shared political project for the culturally diverse population.
1 Kapustin, Anatoly, Crimea's Self-Determination in the Light of Contemporary International Law, 75 Heidelberg J. Int'l L. 101 (2015).Google Scholar
2 Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal, 37–66 (1995); David Raič, Statehood and the Law of Self-Determination 226-42 (2002); Robert McCorquodale, Self-Determination: A Human Rights Approach, 43 Int'l & Comp. L. Q. 857, 860 (2012).Google Scholar
3 Christakis, Theodore, Self-Determination, Territorial Integrity and Fait Accompli in the Case of Crimea, 75 Heidelberg J. Int'l L. 75, 82–84 (2015).Google Scholar
4 See Buchanan, Allen, Justice, Legitimacy and International Law (2004).Google Scholar
5 Hannum, Hurst, Rethinking Self-Determination, 34 Va. J. Int'l L. 2 (1993).Google Scholar
6 Antonio Cassese, Self-Determination of Peoples, 11–36 (1995); David Raič, Statehood and the Law of Self-Determination 171-88 (2002).Google Scholar
7 Miller, David, Territorial Rights: Concept and Justification, 60 Pol. Stud. 252-53 (2012). This definition is not beyond dispute but is generally accepted.Google Scholar
8 See Cohen, Jean, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism, 223-65 (2012).Google Scholar
9 See Miller, David, On Nationality (1995); Margaret Moore, The Ethics of Nationalism (2001); National Self Determination and Secession (Margaret Moore & Allen Buchanan eds., 1998); Tamar Meisels, Territorial Rights (2005).Google Scholar
10 Nine, See Cara, Global Justice and Territory 26–44 (2012); Cara Nine, A Lockean Theory of Territory, 56 Pol. Stud. 148 (2009).Google Scholar
11 Stilz, Anna, Nations, States, and Territory, 121 Ethics 572, 580-84 (2011); Anna Stilz, Why Do States Have Territorial Rights?, 1 Int'l Theory 185, 198–206 (2009).Google Scholar
12 Corporate agent refers to a collective agent composed of individuals acting jointly. Moral agency is traceable to individuals, but in the case of territorial right the agent is a very large group of individuals, or individuals acting in virtue of their affiliation to the group. I use the term corporate agent to connote a collective agent that is substituted by individuals. On collective agents on this type, see List, Christian & Pettit, Phillip, Group Agency: The Possibility, Design, and Status of Corporate Agents 19–41 (2011).Google Scholar
13 Following the terminology of the theories explored here, “nation” refers to the cultural and ethno-cultural nation, and “people” to the legal-political people. Other definitions and conceptions both of nation and people are possible. This terminology is employed in the interest of clarity.Google Scholar
14 Miller, supra note 9, at 185; see also Margalit, Avishai & Raz, Joseph, National Self-Determination, 86 J. Phil. 439 (1990).Google Scholar
15 Kymlicka, Will, Multicultural Citizenship: A Liberal Theory of Minority Rights 84, 165 (1996).Google Scholar
16 Id. at 86.Google Scholar
17 Miller, supra note 9, at 4-6; see also Tamir, Yael, Liberal Nationalism 35–56(1993).Google Scholar
18 Evidently some of the seceding states remain internally multinational, or multi-ethnic, as in the case of Bosnia-Herzegovina, or have considerable national minorities, like Estonia. Others like the Czech Republic are uninational after the secession from Czechoslovakia.Google Scholar
19 The events of 1848-49 and the political thought related to them receive little, if any, attention in contemporary scholarship, because they are considered a failure. However, historian Jonathan Sperber reminds us that they were “the largest, most widespread, and the most violent political movement of nineteenth century Europe,” reaching “from the Atlantic Coast to the Carpathians [and] from the Mediterranean to the Baltic.” Jonathan Sperber, The European Revolutions: 1848-1851 3 (1994).Google Scholar
20 Wilson, Woodrow, Address to the United States Congress (Feb. 1918), in Carlile Macartney, National States and National Minorities 189-90 (1934).Google Scholar
21 No moral judgment is meant here about blameworthy parties in this process, nor on whether claims about historical injustices are relevant. Some commentators tie forced migration and violence related to ethno-national conflict in Europe together with the violence, extermination, and expulsion of National Socialism. This is a conceptual error and an unfair critique of liberal nationalism.Google Scholar
11 Arendt, Hannah, The Origins of Totalitarianism 290 (2004).Google Scholar
23 Oklopic, See Zoran, Introduction: The Crisis in Ukraine Between the Law, Power, and Principle, 16 German L.J. 350 (2015).Google Scholar
24 Macartney, supra note 20, at 278.Google Scholar
25 E.g., Mareck, Titus, in Stenographischer Bericht über die Verhandlungen der deutschen constituirenden Nationalversammlung zu Frankfurt A.M. IV: 2892, 2894 (Franz Wigard ed., 1848-49) [hereinafter StB]; and Adolf Wiesner, in StB, IV: 2784–85. These declarations of loyalty to Austria did not come from royalists, but from the radicals. Also from the Left came the opposition, led by Robert Blum, to inclusion of the German delegates from the Duchy of Posen, because this territory, though under Prussian rule, was not a part of the German Confederation. See Eyck, Frank, The Frankfurt Parliament 1848–49, at 275-83 (1968).Google Scholar
26 Marx, Karl, ever unimpressed by the appeal of nationalities, describes Palacký in his newspaper reports on the Frankfurt Assembly: “The chief champion of the Tschechian nationality, Professor Palacký, is himself nothing but a learned German run mad, who even now cannot speak the Tschechian language correctly and without foreign accent.” Karl Marx, Revolution and Counter-Revolution in Germany VIII (1852), available at https://www.marxists.org/archive/marx/works/1852/germany/ch08.htm.Google Scholar
27 Winkler, H.A., Germany: The Long Road West (2007).Google Scholar
28 Franz Palacký, Österreichs Staatsidee 82, app. A (1866). For this translation, excluding the final sentence, see Wiskemann, Elisabeth, Czechs and Germans: A Study of the Struggle in the Historic Provinces of Bohemia and Moravia 23 (1938).Google Scholar
29 For a detailed survey and documentation of the plebiscites, see Wambaugh, Sarah, Plebiscites Since the World War: With a Collection of Official Documents (1933). See also Hannum, supra note 5, at 5–7.Google Scholar
30 Wambaugh, supra note 29, at 198–252.Google Scholar
31 See generally, Zoran Oklopcic, 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
32 Moore, Margaret, Which People and What Land? Territorial Right-Holders and Attachment to Territory, 6 Int'l Theory 121, 122 (2014).Google Scholar
33 Miller, David, Debatable Lands, 6 Int'l Theory 104 (2014).Google Scholar
34 As noted above, the point is not to assign moral blame but to take the relevant history of an idea into account. For a detailed overview, see Macartney, supra note 20.Google Scholar
35 Liberal nationalism too has an instrumental element insofar as the theory appeals to the goods that nationality allegedly helps sustain—trust and democratic cooperation. However, the crux of the justification of territorial right is anchored in the value of national self-rule. Territorial right, on this view, is required for the nation to govern itself.Google Scholar
36 Nine, supra note 10, at 26–27; Stilz, Why Do States Have Territorial Rights, supra note 11, at 187–88.Google Scholar
37 Nine, supra note 10, at 30–34.Google Scholar
38 See Still, Why Do States Have Territorial Rights, supra note 11, at 198-200; Stilz, Nations, States, and Territory, supra note 11, at 580-82; see also Ripstein, Arthur, Force and Freedom: Kant's Legal and Political Philosophy 145-81 (2009). For Kant's discussion of the state of nature, the move to the civil state, and the nature of the state, see Kant, Immanuel, Part II: Metaphysical Principles of the Doctrine of Right, in The Metaphysics of Morals 41, 44–49.Google Scholar
39 For John Locke's conception of the state of nature, see Locke, John, Two Treatises of Government 285–446 (Peter Laslett ed., Cambridge Univ. Press 1988).Google Scholar
40 Nine, supra note 10, at ch. 3.Google Scholar
41 Stilz, Nations, States, and Territory, supra note 11, at 580.Google Scholar
42 E.g., Robert Goodin, What Is So Special About Our Fellow Countrymen?, 98 Ethics 663 (1988); see Caney, Simon, Cosmopolitanism and the Law of Peoples, 10 J. Pol. Phil. 95 (2002).Google Scholar
43 Moore, supra note 32.Google Scholar
44 See Banai, Ayelet, The Territorial Rights of Legitimate States: A Pluralist Interpretation, 6 Int'l Theory 140 (2014).Google Scholar
45 In distinction from the arguments in constitutional patriotism, the particularities are not seen merely as incidental varieties of universalism, but as subjectively valuable properties of the group.Google Scholar
46 Moore, supra note 32, at 127.Google Scholar
47 This is not a judgment about the rightfulness of the Chechen attempt at secession, but an example for how the condition of viability operated.Google Scholar
48 Purely subjective conceptions are typical of proponents of plebiscitary approaches, See Beran, Harry, A Liberal Theory of Secession, 32 Pol. Stud. 21 (1984); see also Christopher Wellman, A Theory of Secession: The Case for Political Self-Determination (2005). I return to this issue below.Google Scholar
49 “Sub-optimal” does not connote extremely bad or catastrophic.Google Scholar
50 Nine, supra note 10, at 51–52.Google Scholar
51 Stilz, Nations, States, and Territory, supra note 11.Google Scholar
52 Moore, supra note 9, at 28.Google Scholar
53 Wellman, supra note 48 (defending self-determination as a case of freedom of association—an individual liberty).Google Scholar
54 Ayelet Banai, Political Self-Determination and Global Egalitarianism: Towards an Intermediate Position, 39 Soc. Theory & Prac. 45, 49–63 (2013).Google Scholar
55 Wellman, supra note 48, at 38–58.Google Scholar
56 Id. at 39.Google Scholar
57 See Wellman, supra note 48; Beran, supra note 48; see Pogge, Thomas, Cosmopolitanism and Sovereignty, 103 Ethics 48, 69–70 (1992); see also Catala, Amandine, Secession and Annexation: The Case of Crimea, 16 German L.J. 581 (2015) (presenting an amended version of the choice theory).Google Scholar
68 This is not to undermine rights anchored in residence and occupancy. Only the move from residence and occupancy to the right to determine territorial jurisdiction in the plebiscitary approaches is hasty.Google Scholar
59 For demographic data, see, e.g., Jane Dawson, Ethnicity, Ideology and Geopolitics in Crimea, 40 Communist & Post-Communist Stud. 427, 429 (1997); see also State Statistics Committee of Ukraine, All-Ukrainien Population Census (2001), available at http://2001.ukrcensus.gov.ua/eng/results/general/nationality.Google Scholar
60 Hill, Norman, Claims to Territory in International Law and Relations (1945); see also Macartney, supra note 20.Google Scholar
61 Pirie, Paul, National Identity and Politics in Southern and Eastern Ukraine, 48 Europe-Asia Stud. 1079, 1083 (1996).Google Scholar
62 Dawson, supra note 59, at 432-33 (showing a distinction from other pro-Russian splits from the Republican movement that endorsed ethno-cultural Slavic nationalist ideology).Google Scholar
63 From 1991 Crimea's administrative status within Ukraine was The Autonomous Republic of Crimea.Google Scholar
64 Markedonov, Sergei, The Crimean “Question,” open Democracy (Jan. 16, 2015), available at https://www.opendemocracy.net/od-russia/sergei-markedonov/crimean-%E2%80%98question%E2%80%99.Google Scholar
65 Dawson, supra note 59, at 434.Google Scholar
66 Klein, Denise, Introduction, in The Crimean Khanate between East and West 4 (Denise Klein ed., 2012).Google Scholar
67 For overviews of identities based on surveys and sociological studies, see Pirie, supra note 61; see also Karostelina, Carina, The Multi-Ethnic State-Building Dilemma: National and Ethnic Minorities’ Identities in Crimea, 5 Nat'l Identities 141 (2003).Google Scholar
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