¹ See Crimea Referendum: Voters ‘Back Russia Union,' BBC News (Mar. 16, 2014), http://www.bbc.com/news/world-europe-26606097.Google Scholar

² Id. Google Scholar

³ See UN Security Council Resolution on Ukraine (C-Span broadcast Mar. 15, 2014), available at http://www.c-span.org/video/?318324-1/un-security-council-meeting-ukraine.Google Scholar

⁴ Id. Google Scholar

⁵ See Crimean Parliament Formally Applies to Join Russia, BBC News, Mar. 17 2014, http://www.bbc.com/news/world-europe-26609667.Google Scholar

⁶ See Ukraine: Putin Signs Crimea Annexation, BBC News (Mar. 21, 2014), http://www.bbc.co.uk/news/world-europe-26686949.Google Scholar

⁷ G.A. Res. 68/262, ¶ 2, U.N. Doc. A/RES/68/26 (Mar. 27, 2014).Google Scholar

⁸ Id. Google Scholar

⁹ See G.A. Res. 25/2625 (XXV), ¶ 121, U.N. Doc. A/RES/25/2625 (Oct. 24, 1970) (stating principle V provides that the right of self-determination can be implemented by establishing a “sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people”).Google Scholar

¹⁰ Id. Google Scholar

¹¹ The argument in favor of international legal neutrality was advanced in a number of pleadings before the ICJ in the Kosovo Advisory Opinion. Consider the following illustrative arguments: “A declaration of independence … constitutes a purely internal legal act and not an international legal act.” See Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Public sitting on the advisory opinion, I.C.J. CR 2009/28, 27 para. 31 (Dec. 4, 2009) (argument of Jean d'Aspremont on behalf of Burundi) (emphasis in original); “A declaration [of independence] issued by persons within a State is a collection of words writ in water … [W]hat matters is what is done subsequently, especially the reaction of the international community.” See Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Public sitting on the advisory opinion, I.C.J. CR 2009/32, 47 para. 6 (Dec. 10, 2009) (argument of James Crawford on behalf of the United Kingdom); “State practice confirms that the adoption of a declaration of independence, or similar legal acts, frequently occurs during the creation of a new State. As such, this very act—the act of declaring independence—is legally neutral.” See Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Public sitting on the advisory opinion, I.C.J. CR 2009/29, 52 para. 11 (Dec. 7, 2009) (argument of Andreja Metelko-Zgombic on behalf of Croatia). A different argument was, however made on behalf of the United States, for example, which acknowledged that declarations of independence do not entirely fall outside of the purview of international law: “We do not deny that international law may regulate particular declarations of independence, if they are conjoined with illegal uses of force or violate other peremptory norms, such as the prohibition against apartheid.” See Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Public sitting on the advisory opinion, I.C.J. CR 2009/30, 30 para. 20 (Dec. 8, 2009) (argument of Harold Hongju Koh on behalf of the United States).Google Scholar

¹² See, e.g., Crawford, James, The Creation of States in International Law 390 (2d ed. 2006).Google Scholar

¹³ See Vidmar, Jure, Territorial Integrity and the Law of Statehood, 44 Geo. Wash. Int'l L. Rev. 101, 109 (2012).Google Scholar

¹⁴ Id. at 114.Google Scholar

¹⁵ See Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland (Oct. 15, 2012), http://www.scotland.gov.uk/About/Gavernment/concordats/Referendum-on-independence; see also Tierney, Stephen, Legal Issues Surrounding the Referendum on Independence for Scotland, 9 Eur. Con. L. Rev. 359, 362–63 (2013) (affirming that the agreement between the governments of Scotland and the UK “contrasts sharply with so many States where the issue of secessionist or sovereignist referendums has been the source of such deep and protracted disagreement”).Google Scholar

¹⁶ See Scottish Referendum: Scotland Votes ‘No’ to Independence, BBC News (Sept. 19, 2014), http://www.bbc.com/news/uk-scotland-29270441.Google Scholar

¹⁷ Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, para. 126 (Can.).Google Scholar

¹⁸ See Tancredi, Antonello, A Normative ‘Due Process’ in the Creation of States Through Secession, in Secession: International Law Perspectives 171, 176 (Marcelo G. Kohen ed., 2006) (providing a thorough account on the academic support for “remedial secession”).Google Scholar

¹⁹ Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law 335 (2004).Google Scholar

²⁰ See id. at 339-40 (providing a definition of “salt water colonialism,” which refers to the understanding of colonialism in the sense of European overseas possessions, but does not cover oppression within the metropolitan territory of a State).Google Scholar

²¹ See G.A. Res. 1514 (XV), ¶ 1, U.N. Doc. A/RES/1514 (Dec. 14, 1960).Google Scholar

²² Id. ¶ 6.Google Scholar

²³ Id. ¶ 5.Google Scholar

²⁴ 2 S.C.R. 217, at para. 126.Google Scholar

²⁵ Id. at para. 135.Google Scholar

²⁶ See Vidmar, Jure, International Legal Responses to Kosovo's Declaration of Independence, 42 Vand. J. Transnat'l L. 779, 831-34 (2009) (giving a thorough analysis of state practice opposing remedial secession).Google Scholar

²⁷ Bangladesh (formerly known as East Pakistan) was a geographically separate entity that declared independence from Pakistan in 1971. In the circumstances of brutal oppression over the Bengali people, India intervened militarily and drove Pakistani forces out of East Pakistan (Bangladesh). It was not until 1974, when Pakistan itself granted recognition, that Bangladesh became universally recognized and a member of the UN. See Crawford, supra note 12, at 393.Google Scholar

²⁸ Id. Google Scholar

²⁹ In 1999, Kosovo was placed under the regime of international territorial administration by Security Council Resolution 1244, adopted under Chapter VII of the UN Charter. The Resolution was adopted in response to the years of violence, severe oppression, and armed conflict, which led to NATO intervention without UN Security Council's authorization. From 1999 until its independence in 2008, Kosovo was thus governed in separation from Serbia but legally it nevertheless remained Serbia's province. Independence was declared in 2003, when Serbia no longer exercised effective control over Kosovo, and its oppressive policies had been over for nine years. See generally Vidmar, supra note 26.Google Scholar

³⁰ See Kosovo Declaration of Independence (Feb. 17, 2008), http://www.assembly-kosova.org/?cid=2,125,1635.Google Scholar

³¹ See Address by President of the Russian Federation, President of Russia (Mar. 18, 2014), http://eng.kremlin.ru/news/6889.Google Scholar

³² Crawford, supra note 12, at 393.Google Scholar

³³ 2 S.C.R. 217, at para. 126.Google Scholar

³⁴ See Dixon, Martin, Robert McCorquodale & Sarah Williams, Cases and Materials in International Law 158 (5th ed. 2011).Google Scholar

³⁵ 2 S.C.R. 217, at para. 155.Google Scholar

³⁶ Id. Google Scholar

³⁷ See Who Recognized Kosovo as an Independent State, Kosovo Thanks You, http://www.kosovothanksyou.com.Google Scholar

³⁸ Vidmar, supra note 13, at 702.Google Scholar

³⁹ See Jellinek, Georg, Allgemeine Staatslehre 137 (2d ed. 1905).Google Scholar

⁴⁰ See Talmon, Stefan, Kollektive Nichtanerkennung illegaler Staaten 222 (2004).Google Scholar

⁴¹ Id. at 218–20.Google Scholar

⁴² Id. Google Scholar

⁴³ 2 S.C.R. 217, at para. 126.Google Scholar

⁴⁴ See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141, para. 79 (July 22) (recalling that throughout history states commonly emerged upon declarations of independence which were initially unilateral. Ultimately, the Court concluded: “In no case … does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law.”).Google Scholar

⁴⁵ See Borgen, Christopher, Can Crimea Secede by Referendum?, Opinio Juris (Mar. 6, 2014), http://opiniojuris.org/2014/03/06/can-crimea-secede-referendum.Google Scholar

⁴⁶ Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141, para. 81 (July 22).Google Scholar

⁴⁷ See, e.g., Hannum, Hurst, The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused, 24 Leid. J. Int'l L. 155 (2011).Google Scholar

⁴⁸ See S.C. Res. 541, U.N. Doc. S/RES/541 (Nov. 18, 1983).Google Scholar

⁴⁹ See G.A. Res. 1747 (XVI), U.N. Doc. A/RES/1747 (XVI) (June 27, 1962); see also S.C. Res. 202, U.N. Doc. S/RES/202 (May 6, 1965); see also G.A. Res. 2022 (XX), U.N. Doc A/RES/2022 (XX) (Nov. 5, 1965); see also Res, G.A., 2024 (XX), U.N. Doc. A/RES/2024 (XX) (Nov. 11, 1965); see also S.C. Res. 216, U.N. Doc. S/RES/216 (Nov. 12, 1965); see also S.C. Res. 217, U.N. Doc. S/RES/217 (Nov. 20, 1965); see also S.C. Res. 277, U.N. Doc. S/RES/277 (Mar. 18, 1970).Google Scholar

⁵⁰ See G.A. Res 2671F, U.N. Doc. A/RES/2671F (Dec. 8, 1970); see also G.A. Res. 2775, U.N. Doc. A/RES/2775 (Nov. 29, 1971); see also G.A. Res. 31/6A, U.N. Doc. A/RES/31/6A (Oct. 26, 1976); see also G.A. Res. 402, U.N. Doc. A/RES/402 (Dec. 22, 1976); see also G.A. Res. 407, U.N. Doc. A/RES/407 (May 25, 1977); see also G.A. Res. 32/105 N, U.N. Doc. A/RES/32/105N (Dec. 14, 1977); see also G.A. Res. 34/93 G, U.N. Doc. A/RES/34/93 (Dec. 12, 1979); see also G.A. Res. 37/43, U.N. Doc. A/RES/37/43 (Dec. 3, 1932); see also G.A. Res. 37/69A, U.N. Doc. A/RES/37/69A (Dec. 9, 1982).Google Scholar

⁵¹ See Sahara, Western, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16).Google Scholar

⁵² Crawford, supra note 12, at 133.Google Scholar

⁵³ G.A. Res. 56/83, annex, U.N. Doc. A/RES/56/83 (Dec. 12, 2001).Google Scholar

⁵⁴ Krisch, See Nico, Crimea and the Limits of International Law, EJIL Talk! (Mar. 10, 2014), http://www.ejiltalk.org/crimea-and-the-limits-of-international-law/; see also Sari, Aurel, Ukraine Insta-Symposium; When Does the Breach of a Status of Forces Agreement Amount to an Act of Aggression? The Case of Ukraine and the Black Sea Fleet SOFA, Opinio Juris (Mar. 6, 2014), www.opiniojuris.org/2014/03/06/ukraine-insta-symposium-breach-status-forces-agreement-amount-act-aggression-case-ukraine-black-sea-fleet-sofa/.Google Scholar

⁵⁵ Id. Google Scholar

⁵⁶ U.N. Charter art. 2, para. 4.Google Scholar

⁵⁷ Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. Rep. 403, para. 81 (July 22).Google Scholar

⁵⁸ See G.A. Res. 56/83, annex, art. 41.Google Scholar

⁵⁹ Raić, David, Statehood and the Law of Self-Determination 105 (2002).Google Scholar

⁶⁰ See G.A. Res. 56/83, annex, art. 26.Google Scholar

⁶¹ See Address by President of the Russian Federation, President of Russia (Mar. 18, 2014), http://eng.kremlin.ru/news/6889 (arguing that “[a] referendum was held in Crimea on March 16 in full compliance with democratic procedures and international norms.”).Google Scholar

⁶² Western Sahara, Advisory Opinion, 1975 I.C.J. 12, para. 55 (Oct. 16).Google Scholar

⁶³ Brady, Henry E. & Kaplan, Cynthia S., Eastern Europe and the Former Soviet Union, in Referendums Around the World: The Growing Use of Direct Democracy 175 (David I. Butler & Austin Ranney eds., 1994).Google Scholar

⁶⁴ Miller, Russell A., Self-Determination in International Law and the Demise of Democracy?, 41 Colum. J. Transnat'l l. 601, 612 (2003); see also Beigbeder, Yves, International Monitoring of Plebiscites, Refrenda and National Elections: Self-Determination andTransition to Democracy 91 (1994).Google Scholar

⁶⁵ See Vidmar, Jure, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice 65–115 (2013).Google Scholar

⁶⁶ Crawford, supra note 12, at 402.Google Scholar

⁶⁷ Vidmar, supra note 65, at 190, 196.Google Scholar

⁶⁸ Sahara, Western, Advisory Opinion, 1975 I.C.J. 12, para. 55 (Oct. 16).Google Scholar

⁶⁹ Id. Google Scholar

⁷⁰ Vidmar, supra note 65, at 190.Google Scholar

⁷¹ Id. Google Scholar

⁷² See Crawford, supra note 12, at 403-11 (providing a comprehensive overview).Google Scholar

⁷³ 2 S.C.R. 217, at para. 87.Google Scholar

⁷⁴ Id. para. 91.Google Scholar

⁷⁵ Id. Google Scholar

⁷⁶ Vidmar, supra note 65, at 192–93.Google Scholar

⁷⁷ Id. at 193–94.Google Scholar

⁷⁸ Id. at 194–95.Google Scholar

⁷⁹ 2 S.C.R. 217, at para. 37.Google Scholar

⁸⁰ See Act, Clarity, S.C. 2000, c. 26, art. 1, para. 3 (Can.).Google Scholar

⁸¹ Id. art. 2, at para. 2.Google Scholar

⁸² Id. Google Scholar

⁸³ Id. art. 1, at para. 3.Google Scholar

⁸⁴ In 1980, the referendum question read:Google Scholar

** The Government of Québec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Québec to acquire the exclusive power to make its laws, administer its taxes and establish relations abroad in other words sovereignty and at the same time, to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will be submitted to the people through a referendum; on these terms, do you agree to give the Government of Québec the mandate to negotiate the proposed agreement between Québec and Canada?Google Scholar

** And in 1995: “Do you agree that Québec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the Bill respecting the future of Québec and of the agreement signed on 12 June 1995?” See Dumberry, Patrick, Lessons Learned from the Secession Reference before the Supreme Court of Canada, in Secession: International Law Perspectives 416, 418-20 (Marcelo G. Konen ed., 2006).Google Scholar

⁸⁵ Sahara, Western, Advisory Opinion, 1975 I.C.J. 12, para. 55 (Oct. 16).Google Scholar

⁸⁶ See Referendum on Independence for Scotland Advice of the Electoral Commission on the Proposed Referendum Question, The Electoral Commission (Jan. 2013), http://www.electoralcommission.org.uk/_data/assets/pdf_file/0007/153691/Referendum-on-independence-for-Scotland-our-advice-on-referendum-question.pdf.Google Scholar

⁸⁷ See Balmforth, Richard, No Room for ‘Nyet’ in Ukraine's Crimea Vote to Join Russia, Reuters (Mar. 11, 2014), http://www.reuters.com/article/2014/03/11/us-ukraine-crisis-referendum-idUSBREA2A1GR20140311.Google Scholar

⁸⁸ Giles, Keir, Crimea's Referendum Choices Are No Choice at All, Chatham House (Mar. 10, 2014), https://www.chathamhouse.org/media/comment/view/198079#.Google Scholar

⁸⁹ See Parliament, Scottish, Scottish Independence Referendum Bill (2013), at http://www.scottish.parliament.uk/parliamentarybusiness/Bills/61076.aspx (last visited on Oct. 30, 2013).Google Scholar

⁹⁰ See Lecours, Andre & Kerr, Stephanie, Towards the Scottish Referendum, 3 Federal News no. 8 (Dec. 2012), http://ideefederale.ca/documents/Dec_2012_ang.pdf (arguing that the UK government was willing to accept this relatively low threshold also because the opinion polls are consistently showing the threshold would not be met).Google Scholar

⁹¹ See United Nations Development Programme, The Comprehensive Peace Agreement (2005), http://www.sd.undp.org/doc/CPA.pdf; see also United Nations Mission in Sudan, The Southern Sudan Referendum Act, art 41 (2009), http://unmis.unmissions.org/Portals/UNMIS/Referendum/SS%20Referendum%20MOJ-Englis.pdf.Google Scholar

⁹² Plebiscite on the Sovereignty and independence of the Republic of Slovenia, Official Gazette of the Republic of Slovenia, No. 44–2102/1990 (Dec. 2, 1990), art. 3.Google Scholar

⁹³ International Crisis Group, Montenegro's Referendum, Briefing No. 42, 6 (2006).Google Scholar

⁹⁴ See Crimea Referendum: Voters ‘Back Russia Union,’ supra note 1.Google Scholar

⁹⁵ See U.N. Charter art. 2, para. 4 (“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”).Google Scholar