This special issue of German Law Journal (GLJ) originates from a colloquium co-sponsored by the GLJ, the Miller Institute for Global Challenges and the Law, and the Center for Constitutional Transitions that took place at the Berkeley School of Law in February 2015, just over a year after the revolutionary events at Maidan Square in Kiev triggered profound changes in the geopolitical map of contemporary Europe and shook the foundations of international order.

Beyond the gravity of the crisis itself, what animates the contributions in the following pages is an attendant awareness of the need to rethink the appropriateness of disciplinary responses to the conflict in Ukraine. Though the rhetoric of brazen takeovers, cynical ploys, stealing and redeeming, chronic authoritarianism and imperialism, hypocrisy, and broken promises have all contributed to a combustible political situation in and around Ukraine, a diverse sense of outrage has also been subtly, but nonetheless decisively, structured and amplified by the vocabularies of international and constitutional law, moral arguments, and their complicated interplay. Though differing in their practical ambitions, technical vocabulary, and the professional sensibilities they cultivate, the disciplines of international law, comparative constitutional law, and normative political theory, have each upheld one of the most important components of the modern social imaginary: The idea of popular sovereignty.

The idea that the will of the people ought to be a decisive factor in resolving the crisis in Ukraine continues to unite most commentators, partisans, and scholars, irrespective of their otherwise profound ideological and political differences. From the perspective of overarching social imaginary, the ominous geopolitical crisis in Ukraine, while dangerous in its potential outcomes, appears as a family quarrel among the believers of the constitutional creed of western political modernity. Unlike another geopolitical crisis of our time—the attempts of ISIS to redraw the map of the Middle East—the situation in Ukraine is not a conflict over the existence of international legal order, but rather one over the meaning of its foundational building blocks: The internal and external self-determination of peoples, territorial integrity, and the sovereign equality of independent states.

The secession of Crimea and—more broadly—the conflict in Ukraine reopened questions concerning the limits of a democratic expression of the will of the people and the use of force in order to procure annexation of a territory belonging to another State. This article seeks to clarify the law governing the change of the legal status of a territory through secession and merger with another state. It argues not only that the right of self-determination does not grant an entitlement to alter the legal status of a territory, but also that general international law does not prohibit such an alteration. The rules of international law favor the stability of the existing international borders and thus the territorial status quo, but this does not mean that a unilateral attempt at altering an existing territorial arrangement automatically constitutes an internationally wrongful act. Any change of the legal status of a territory becomes illegal, however, upon an outside use of force. Such an illegality cannot be “cured” by a democratically expressed will of the people.

The United Nations Charter-based international order sought to reconcile the self-determination of peoples with the inviolability of state boundaries by presuming sovereign states to be manifestations of the self-determination of the entirety of their territorial populations. This presumption, albeit nationally rebuttable, traditionally prevailed even where states could only by a feat of ideological imagination be characterized as “possessed of a government representing the whole people belonging to the territory without distinction.” But the international reaction to fragmentation in the former Yugoslavia—regarding both the initial “dissolution” and the subsequent struggle over Kosovo—called into question the rigid doctrines of the past and opened the door to secessionist claims theretofore dismissible as beyond the pale. Although no vindication of Russian intervention in Ukraine can properly be drawn from the Yugoslav cases, the Ukrainian crises help to surface the hidden dangers of an emerging jurisprudence that would allow previously inadmissible considerations—whether ethnic, historical, constitutional, or “democratic”—to compromise the territorial inviolability norm.

Russia's absorption of Crimea violated the norm of territorial integrity, which protects states against involuntary loss of territory to other states. This article addresses two different arguments on how to deal with this violation: (1) That Ukraine lost Crimea for good and that this should be acknowledged, both politically and legally, if one seeks to forestall forcible change of interstate boundaries elsewhere; and (2) that third party countermeasures against Russia can roll back its territorial gains in Ukraine, but only if they are much more materially robustthanthey have been so far. Whilemutually incompatible, the arguments raise an important issue—how to uphold international legal norms in particular situations—an issue to which scholars of international law do not pay much detailed attention. Yet doing so is important because international legal norms leave governments with wider decision-making discretion than is commonly presumed, and different ways of upholding a norm are predisposed to generate different effects, including legal effects. Having examined the two approaches, the article argues that the best way to uphold the territorial integrity of Ukraine is by staking a middle ground between them, placing emphasis on the policy of non-recognition.

This article attempts to destabilize the assumption that self-determination can be restricted to a “purely legal” analysis of the sort to which most international legal scholars have conventionally confined themselves. It does so by focusing upon the conditions under which the legal rhetoric of collective self-determination came to be mobilized during the course of Russia's incursion into and subsequent annexation of Crimea in early 2014, as well as its ongoing deployment in the context of Russia's political, military, and financial support for self-declared “people's republics” in Donetsk and Luhansk. After briefly examining legal arguments in support of and in opposition to Russia's actions, the article argues that the Ukraine crisis problematizes the traditional reluctance of international lawyers to engage with the complex, and often counterintuitive, articulations of self-determination offered by participants in armed conflict. Recourse to self-determination cannot be understood without appreciating the concrete politico-economic pressures in response to which states are created and recreated. The alternately “lofty” and “cynical” formulations of self-determination that have characterized the ongoing struggle in and over Ukraine can only be understood in light of protracted competition between rival class projects that generate significantly different visions of world order. This compels us to confront the class dimensions of the concept of collective self-determination rather than continuing to conceive it as a purely national, or ethno-national, project of recognition or emancipation.

In Ukraine, spheres of political, military, and economic control are contested, non-transparent, and shifting. As the Ukrainian government lost control over the rebellious Eastern oblasts (regions) of the country, Russia denies its authority over various pro-Russian separatists and vigorously rejects any responsibility for the abuses by the unidentified “green men,” both before and after the annexation of Crimea. Even during the decades before this conflict, the rule of law in Ukraine was “thin” at best. Meaningful political control was sporadic and dispersed, often wielded by the mix of public, private, and other shady actors occupying the grey area between a functional and a dysfunctional state. If state actors never effectively took control over the events at the state-level during peaceful times, it is not surprising that it is more difficult once a “hot” conflict breaks out. It is not unreasonable to assume that Minsk agreements—signed in an effort to stop the hemorrhaging of the conflict—will not hold if the signatories do not effectively control the diverse public and private actors who possess the actual capacity to influence the dynamic on the ground. Before rendering any kind of juridical judgment, the complicated political and socioeconomic configuration of the conflict in Ukraine forces us to first confront a factual puzzle: Who and what influence the current situation? Which concrete actors really drive the conflict and what interests animate them?

The Ukraine crisis has, yet again, called into question the coherence and stability of international law both as a language for mediating particular types of international disputes—such as conflicts between the so-called Great Powers— and as a set of institutions capable of serving as fora for the resolution of these disputes. Given the scale and intensity of the ongoing war in Ukraine and the magnitude of its regional and global repercussions, a number of policymakers and historians have already made compelling arguments for why the conflict may be the most significant threat to global order since the end of the Cold War—perhaps even since the Cuban Missile Crisis. While policymakers in the U.S. and Russia have cautioned against drawing Cold War parallels, numerous analysts in both countries have proclaimed the start of a new Cold War in light of the rapid deterioration in relations between Moscow and Washington. Beyond bilateral U.S.–Russia relations, and in the words of Dmitri Trenin, director of the Carnegie Moscow Center, Cold War Two (hereinafter “CWII”) has “effectively put an end to the interregnum of [post-Cold War] partnership and cooperation between the West and Russia.” While sharing the view that a new Cold War has erupted, this article suggest that its causes are far deeper and its likely battlegrounds are far wider than mere antagonism between the United States and Russia over the fate of Ukraine, To the extent that CWII has begun, it may mark a return to interbloc rivalry, East versus West, or even Great Game geopolitics. To complement these frames, the present conflict may also be understood by viewing it through the prism of political economy, particularly the study of “new-statism,” or the new developmental state within the broader context of the development of global capitalism. Thinking of CWII this way allows one to ask whether CWII is actually a war between Western liberal capitalism and various systems of state capitalism, of which Russia's is but one. To be even more precise, one can also ask whether the conflict is better thought of as a contest between different state capitalisms for control over key trade or transit routes, production locales, and markets. Tribes, states, and empires have always waged mortal combat over these material matters. CWII—whether it has started or soon will—will likely rest on similar considerations. And yet, despite the seriousness of the threat, there has been remarkably little academic discussion, and much less public debate, regarding the configuration of global power flows that has contributed to this crisis or the role, and limitations of law in structuring our political imaginations in response to these challenges. This Article is an attempt to call attention to several serious aspects of the Ukraine crisis which have hitherto been underanalyzed, namely the role of information warfare in exacerbating its magnitude.

This article examines the specific issue of the referendum as an instrument in the reordering of territory, specifically in the context of the secession of Crimea from Ukraine. The article maps how in recent decades independence referendums have proliferated and considers how the Crimean situation exposes the deep pathology of uncertainty in international law and its understanding of self-determination, exposing the referendum as a dangerous outlier. The principle of democracy, present already in the context of Kosovo's unilateral independence, and which forced the hand of Canada and the UK to accommodate secessionist aspirations, is a growing feature of international legal discourse, and one which suggests that the referendum is likely to remain a potential trump card to which nationalists will appeal to overcome both constitutional impediments and the black hole of international law in the path toward statehood.

This article reflects on the protection of territorial integrity in the Ukrainian constitution, especially on its provision of unamendability, against the backdrop of the 2014 Crimean crisis. At the general level, we examine whether constitutional theory can offer answers when confronted with the apparent inefficacy of a constitutional claim to eternity. More specifically, we focus on what the Ukrainian case can teach us about the implications of designating territorial integrity or indivisibility of a state as an eternal/unamendable constitutional principle. Building on insights from the Crimean crisis, we argue that the unamendable protection of territorial integrity is an especially ineffective type of eternity clause because it is subject to both the internal threat of secession and the external risk of forceful annexation, The preservative promise of unamendable territorial integrity is severely curtailed by this double vulnerability, even when backed by a constitutional court with far-reaching powers of judicial review. Territorial integrity as an eternal constitutional principle then remains merely aspirational. Moreover, we argue that the act of entrenching territorial protection as an unamendable principle is in clear tension with the idea of popular sovereignty and with mechanisms for expressing popular will.

The recent crisis involving the territory of Crimea has been characterized both as a case of wrongful annexation and as one of rightful secession. Territory and competing territorial claims lie at the heart of the normative questions of secession and annexation. Any normative theory of secession or of annexation must therefore address their territorial aspect: It must explain why one agent rather than another has a valid claim to the disputed territory. One of the most interesting, yet controversial, normative accounts of secession has been offered by choice theorists of secession. Choice theorists adopt a rather permissive stance, based on the normative significance of political self-determination. Choice theories, however, have been widely criticized for failing to provide a satisfactory account of what legitimates the seceding group's territorial claim. This article argues that it is possible to remedy choice theories’ failure to address the question of territorial justification adequately. To do so, this article offers a two-tier account of territory that is grounded in the normative significance of self-determination. It defends this account of territory by showing that it is implied by our normative condemnation of annexation. It argues that the same reasons that warrant opposition to annexation provide support for secession, In closing, this article revisits the case of Crimea in light of its two-tier account of territory, and considers what role international law and institutions might play in addressing this type of situation.

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.

Using the secession claims in Ukraine and elsewhere as points of reference, this article reflects on the meaning of popular sovereignty and consent of the governed in divided societies.

The article begins by critiquing the approach to secession claims prevailing internationally. It finds that the imprecision of the applicable rules, the plethora of secession claims, and most importantly, the claims’ adverse effects on relations between and within states urge different treatment.

The article then assesses an alternative approach, based on realizing the principles of self-determination and democracy through independence referendums. It finds that a doctrine of democratic secessionism, if conceived consistently and implemented consequently, shows considerable potential as a guide in treating secession claims. Moreover, this alternative proves preferable to the prevailing approach, practically as well as conceptually.

According the principles of self-determination and democracy higher legitimacy than and precedence to other considerations would in some conflict cases lead to striking outcomes. Nonetheless, such an alternative approach could prove not only intrinsically but also instrumentally valuable, contributing, ceteris paribus, to conflict resolution.

Using the crisis in Ukraine and the annexation of Crimea as a foil, the aim of this article is three-fold. First, it offers an internal critique of the influential answers that normative theory and international jurisprudence provide to the paradox of constitutionalism. Second, building on critical engagement with these approaches, this article mobilizes constitutional theory to find a constructive response to the crisis in Ukraine that goes beyond the prescriptions offered either by normative theory or international jurisprudence. In doing so, it seeks to sketch a broad constitutional framework not for post but rather for early-conflict constitution-making. The final aim of this article is to contribute to a richer self-understanding of constitutional theory vis-à-vis its disciplinary neighbors.

The conflict in the Ukraine—barely placated by a fragile truce that temporarily froze its territorial fault lines—remains one of the gravest threats to both regional and international peace since the end of the Cold War. The present de facto territorial arrangements in Ukraine remain highly unstable—as well as entirely unacceptable—to at least one of the parties to the conflict. With the fate of the second Minsk Agreement in question, neither the parties involved in the conflict nor the powers that support them have been able to propose mutually-acceptable, comprehensive solutions that would significantly diminish the danger of a renewed violent confrontation. In such a situation, the wider international community could play a helpful role in achieving a lasting political settlement.